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City of London Livery Companies' Commission: Report and Appendix, Volume 4 online

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portance therefore for the purpose of aiding in determining
what was decided by the Court in a case where it is
argued on the one side, in the absence of specific words,
that the decision was to a particular effect, and where it is
argued on the other side tnat it was not so. It is also of
some importance to ascertain in what way the gift was
accented. There have been instances in which the Court
has held that you may infer from contemporaneous trans-
actions what was the trust assumed by the persons who
accepted a gift. No doubt, generally speaking, the gift
must be accepted according to the intention of the giver,
as declared at the time ; but where the object is to make a
corporation account, particularly such a corporation as a
college like Catherine Hall, where Lord Eloon expressly
referred to it as not being under any obligation whatever
to accept an increase of endowment, they may accept an
increase with certain qualifications which the Court may
collect from the transactions that took place at the time,
whether those transactions are established by documents



that existed at the time, or proved by a constant course of
eondoet adopted at tiie time, and persevered in downwards :
this is not a case precisely of that sort, but here we have,
(as we have not in ve^ many cases,) the de^dante in this
case declaring by their answer, that they always intended,
and still do intend, God willing, as near as they can, to
perform the said WDl and Testament of the said Thomas
Howell, wi^ as much of the renta of the premises as shall
oome cleariy to their hands, over and above all charges, if
th^ were ascertained, or hereafter shall be aacertained,
what maidens or orphttis of his 1^ or lineage ought, of
right, to have the same legades acoording unto his Will,
which, hitherto, they cannot perfeotly attain to know.

So that nothing can be more clear than this, that the
(fifficulty was to obtain a rule by which they should ascer-
tain from time to time who were the persons entitled to
daim the benefit of this endowment; it being stilted by
the defendants that they were willfaig and mtcnded to
apply so much of the rents firom the premises as should
come clearly to their hands.

Now we are to observe that, at this time, the rents do
not appear to have been equal to answer the full purpose
of the Founder; as I have stated belbre, the rents at that
time were 1051* The decree adoplto a rule by which
it was hoped (that hope did not turn out to be quite
successful), but it adopted a rule by which it was hoped
they should be able, at all times, to ascertain ^o were the
parties entitled to the benefit of this Charity, having
regard to the amount of the rent at that time, ana approves
of a scheme by which the whole was disposed of. It gives
211, for the reparation of and maintaining the property,
and 84/. for the portions which are to be given to the poor
maidens who are entitled to the benefit of the Charity.
Upon this occasion it is to be observed that nothing what-
ever is reserved to the Company. If the Company were
entitled to any benefit or had been supposed by the Court
to be entitled to a beneficial interest in the rent, surely it
would not have been very just to abandon and n^led,
altogether, such interest. There is no such declaration
made, nor could the declaration be made, because the
Company had stated in their answer that they were willing
to apply all that dearhr came to theur hands. This decree
being made, I say clearly, with reference to the rents then
received, because it exhausted the whole and no more, it
certainly might be looked for that it would have some
considmtion to such increase or decrease as might reason-
ably, for some purposes, occur: it provided this, and
directed the sums to be paid out of the rents, not directing
the Company to pay without regard to the rents, but the
sums to be paid were to be paid out of the rents. Well,
then, if there were to be a decrease from a particular cause,
namely, destruction by fire, provision was made for that,
but still no direction is contained that in every other
event, nor is it to be collected from the direction to payout
of the rent, that in every other event, the decrease u to be
made good by a payment by the Company out of their own
pockets^no, they were to apply these sums out of the
rents.

Then there might be an increase by the improvement of
the rents of those estates which were already purchased ;
there might be an increase by the new purchases to be
made by so much of the money as had not been transmitted
by the executors of the Founder; and in both those ca^es
a provision was made for the increase to the extent which
is here mentioned, that is, to the extent of 16/., to be added
to the 84/. — to that extent there was to be an increase.
In either of those cases the increase was to be 16/. That
increase would make four sums of 25/. ; 84/. and 16/. made
it 100/.; and four times 25/. made 100/. : 25/. for each

♦ The decree of Sir Nicholas Bacon, the Lord Eee]Mr. which is here
alluded to, was made on the 24th June 1M9, and the part aUnded to la
in these words :—

" Provided also, that if the said Master and Wardens shall, at any
tune hereafter, receive the sum of three thonsand two hundrad and
fourscore duosts of gold, or the raloe thereof, of the exaontocs or
administrators of the said Thomas Howell, beinic the rest of the said
twelve thousand ducats bequeathed by the said Thomas Howell to the
said Drapers, for the use aforesaid, or suoh part or portion of the said
three thousand two hundred and fourscore ducats as will or mar nur-
chase an increase of lands and tenements, or o^er yeariy beredtta-
m^t^ to the yearly value of 16^. or under \ that then the mid Master
and wardens and their successors shall, yearly from thenceforth, tms,
or cause to be paid, upon certificate as is afbresaid, to fbur of the Ski
orphans so to be certified, so much as the said increase in i«nt of the
said premises to be purchased by the reoeijpt of any part of the rasidue
of the said twelve thousand ducats yet to be received and hei«after
received shall amount unto; fbreseirfng that, in tbe whole, the smkl
orphans shaU not be piOd above the yearly aum of onahuDdred pomuU :
Mia, for a full and perfect end to be made of all oontroversies, it is
^^s ?|5?ewd, adrudged, and decreed by the said Lo«l Kei^ aad
Court of Chancery, that the said Master and Wardens and thabsuoea-
sprs shall be, from henceforth for evermore, clearly exonerated and
discharged against the said complainant*, and evetyof aiem.andall
other orohans that have, or pretend to have, title to any of the kaaoios
afbresaid. by virtue of the said Thomas HoweU's WUfol aU marmS^of
account hereafter to be yielded or givsn to them, orsny of them, for
any receipt or other thing iHiatso«?er, before the date <S this preeent



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MR. hake's BEFOBT. — ^DRAPERS* COMPANY.



189



nudden entitled to the benefit of this Charity. Now,
wttiumt having arithmetical demonstration of it, I fisel so
strongly persuaded that what was meant here was to have
the increase up to that sum whidi the Testator himself had
intended to be the endowment to be g^ven to these poor
maidens, that I do not feel I can entertain a reasoiwle
doubt upon the subject. I believe this decree had in view
ibe sum which was limited by the Founder, and, with that
view, provided for an increase to that extent; and you
have not one word as to any surplus that might probu)ly
arise.

Here, then, it is the rental, the income actually bought,
which was required for the purpose of answering the Will ;
the defendants stating in their answer that they were
willing and desirous to apply ever^hing that clearly came
to their hands — ^that came to thdr hands dearly for the
purposes of this Will, which provided for more than these
400 ducats-^they were willing to apply that. There was
occasion at that time to app^ that which they had ; and
there was reasonable occasion to look forward to an increase
which would make the fund sufficient to answer that which
the Testator specificallv intended. There was an offer by
the defendants to apply everything ; and in that state of
things the Court was silent, and did not proceed any
further ; and the question is, whether I am to collect from
that decree, that the Court declared by implication (an
express declaration is not found or contended for in any
way) ; but whether it is to be considered that the Court by
implication declared, because it had not disposed of the
surplus to an extent ^preater than this 16/., that therefore
the rest was to be apphed for the benefit of the Company ;
I confess I am totally unable to follow the reasoning oy
which that is attempted to be made out. If it had been
intended, there ought to have been a declaration; and
there could not have been that declaration, because it
woold have been contrary to the offer of the Company.
The question clearly never did arise or could arise in the
pleadrags in that case ; and I am very clearly of ojnnion
that this decree does not by anticipation decide the question
which is brought before me to-day ; and that I must look
at these documents, and see whether, according to the
rules of construction which have been adopted in this
Court, where funds are given to a Charity with a direction
to apply them all to the purposes of the Charity in a
manner to exclude all notion of a beneficial interest being
vested in the Trustees ; I am, in this case, to consider that
the Trustees have a right to apply all the funds, beyond
that which was directed by this aecree, to their own benefit
I consider that I csnnot do so ; but that I must, on the
contotty, make an opposite declaration.

Now nothing can be more satisfactory in an investigation
of this kind than to find that there is no possibility for any
imputation of bad or corrupt conduct on the part of the
defendants. The present defendants, beyond m1 ouestion,
have applied this rand just in the manner in whicn it has
been applied by their predecessors : in all probability they
never locked at the original foundation at all ; but instead
of applying it to any beneficial purposes of their own, it
is now shown bv the evidence, and by their answer, and it
is admitted by the Attorney-General, that they have applied
these funds not to their own benefit, but in a most bene-
ficial manner for the most useful charitable purposes ; and
one mav entertain very great doubts whether extending the
charitable purposes of the Founder will be productive of
effects anytning like so beneficial as the charitable purposes
promoted by the defendants : but with that I have ckarly
no concern at all ; I have nothing to do but to consider the
instruments as they are brought before me, and declare the
rights in the way in which I understand them. It is
another consideration whether extending these premiums
to the marriage of young women in WiSes is likely to be
more beneficial in the way of charity than the way in which
the Company have bestowed it.

Now with respect to the time f^m which the account is
to be directed, certainly h is quite satisfiu^ory to me to find
that the Attorney-General confines himself to the filing of
the Bin ; and the account, therefore, must be directed from
that time alone : and, I may say this, that if it had been
pressed otherwise, I think I must have come to that con-
chimoa. I think I could not, with any justice, have charged
this Company with applying to its own purposes any of
those funds. Every case d^nda upon its own circum-*
ttanoes: there are cases in which the account has been
^dcen ^m the time when the information was given from
the pubtication of the Report of the Commissioners of
Chan^ ; other cases in which it has been from the time of
filing the Bill ; and others from the date of the decree.
Those three periods of time have, according to the various
circamstances of each case, been adopted; but I think that
which is now proposed by the Solioitor*Genentl, on behalf



of the Attorney-General, is what is quite right to be done
in this case.

With respect to the costs, the Company have thought fit
to have this question tried, they have thought fit to have
it tried in order that they might have the application of
this money according to their own view of what was riffht.
I have not the least doubt that if the costs are asked against
the Conapany by the Attorney-General, he must have them.

Theremre, I think there must be a declaration that all
this income is applicable to the purposes of the Testator's
Will. The account must be taken ftom the filing oi the
information, and the costs must be paid by the defendants.

Mr, Pemberton Leigh, — ^There must be a scheme.

Lord Langdale.^—l suppose you would wish it to be
referred to the Master to approve of a scheme?

Mr, Pemberton Leigh, — Yes, my Lord, it will be necessary
in taking the account to direct that the Master shall
charge a certain rent for the Hall.

Lord Langdale, — He will set a value upon the Hall, and
take an occupation rent.

Mr, Pemberton Leigh, — No, my Lord, he cannot charge
them with the value, they have built it with their own
money, but he will charge them with an occupation rent.

Lord Langdale, — Yes.



Attorney-General p. Drapers' Company.

Howell's Charity.

Scheme for the Extension of the Charity founded
by Thomas Howell, to the establishment and main-
tenance of Schools in Wales for the instruction of
girls, and the maintaining, clothing, and providing
portions for orphan inmates ; and for the management
and administration of the estates and revenues belong-
ing to the said Charity ; approved by the High Court
or Chancery, 23rd March 1853.



Contents.



Clause Page

1. Company to keep a separate Account of Receipts

and Payments - - - - 13

2. Power to let, sell, or exchange Charity Estates - 13

3. Surplus Income to be invested •* - - 13

4. How Sanction of the Court to be obtained - 13

5. Property to be kept in repair and insured - - 13

6. Allowance for Management - - - 13

7. Abstract of Accounts to be deposited in Record

and Writ Clerk's Office - - - 13

8. Application of Income - - - - 13

9. Company to purchase Sites for Schools - - 13

10. Schools to be built - - - - 13

11. Local Governors - - - - 13

12. Qualification - - - - 13

13. Governors to sign a consent - - - 13

14. Monthly Meetings - - - - 13

15. Five to form a Quorum - - - 13

16. Minute Book - - . . 14

17. Report to be made to the Company - - 14

18. Clerk to the Governors may be appointed - 14

19. Schools to be subject to Visitation - - 14

20. House Steward to be appointed. His wife to act

as Under Housekeeper. Conmiittee to report
upon Condition of Establishment. Accounts

to be made up annually - - - 14

21. Chief Matron and Assistants to ba appointed for

each School - - - - - 14

22. Stipend to Matron and Assistants - - - 14

23. First appointment of the Matron • - 14

24. After first i^pointment. Company to appoint

Matron and Assistants - - - 14

25. Retiring Allowance for Matrons and Assistants - 14

26. Notice of Vacancies to be published - - 14

27. Mode of appointment - - - - 14

28. Matron to have the Superintendence of School, &c. 14

29. And to reside on the Premises - • - 14

30. Ezambien may be a{^inted - • - 14

31. Qualification of Examiner - - -14

32. Duties of Examiner - - - - 14

33. Orphan Inmates to be received into Schools - 14

34. Pi^ Borders - - - -15

35. Allowance for the Maintenance of Orphans - 15

36. Surgeons to be appomted - - - 15

37. Governors to obtam Churdi Accommodation - 15

38. Payment of Salaries and Expenses - • 15

Aa 3



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CITY OF LONDON LIVERY COMPANIES COMMISSION :



Clftuse.

39. Company to purchase Clothing - - -

40. Daj Scholars - . - -

41. Payments by Day Scholaw - - -

42. Account of Entrance Fees to be kept. Applica-

tion thereof . . - •

43. Application of other Monies - - -

44. Course of Instruction . . -

46. Prayers to be read in Schools. Same to be open
to Children of all Religious Denominations -

46. Needlework, &c. to be taught

47. Hours of Attendance . - -

48. Day Boarders . - - - -

49. Library Books 7 ' " "

50. Annual Examination . . - -

51. Notice thereof - . - -

52. Prizes to be distributed - - - -

53. Value of Prizes . - - -

54. Age of Admission and Continuance in the Schools

55. A Portion and Endowment Fund to be established

56. Ladies may visit Schools . . .

57. Visitation of the Drapers' Company

58. Surplus Income - - - -

59. Scheme to be printed - - . -



Page.
15
15
15

15
15
15

15
15
15
15
15
15
15
15
16
16
16
16
16
16
16



Company to

flceepa

separate

Account of

B«oeipt»ftnd

Payments.



Power to
let. sell, or
exchange
•Charity
Estates.



How sane-
tion of the
Court to be
^obtained.



Scheme.

1. That the Drapers* Company, as Trustees of the
Charity, shaU keep a separate account of the property and
income of the Charity, and of the expenditure thereof;
and shall annually make up such account and audit the
same before a Court of the Company.

2. That the said Company shall, with the approbation
of the Court of Chancery, grant or contract for the grant
of any building, improving or other leases, for any term
or number of years, of all or any part of the lands, estates,
and property for the time being belonging to or held in
trust for the said Charity, and also sell, convey, or ex-
change, or contract for the sale, conveyance, or exchange
of all or any part of the same lands, estates, and property,
for such price or prices, upon such terms and conditions,
and with, under, and subject to such powers and provisions
and in such manner respectively as the said Court of
Chancery shall from time to time by its order authorise
or direct ; and for the purposes aforesaid, or any of them,
and also for the improvement or better management of
the said Charity estates or any of them, make and execute
all or any such deeds, leases, and conveyances, and accept
all or any such surrenders, and make and enter into all
such contracts and arrangements, and do all such acts,
matters, and things whatsoever as the Court of Chancery
shaJl in manner aforesaid authorise or direct.

'Surplus 3. That the Company shall from time to time, with the

Fnco™!^^ sanction and approbation of the Court, lay out and invest
itnves ea. ^^^ surplus rents, profits, and income of the Charity estates
and property, and aJl or any monies arising from any sale
or exchange of the Charity estates and property, or any
part thereof, and all or any other monies for the time
being belonging to the Charitjr, in the purchase of lands or
hereditaments, or Government or real securities ; and that
from time to time, when and as often as any such purchase
or investment shall be made as aforesaid, the lands and
securities respectively so to be purchased or obtained shall
be conveyed or transferred unto or otherwise vested in the
Company, their successors and assigns, upon trust for the
benent of the said Charity, as the Court of Chancery may
from time to time direct.

4. That the sanction of the Court of Chancery for the
exercise of any of the powers contained in this Scheme,
for the exercise whereof the sanction of the Court is re-
quired, shall be obtained by leaving with the Chief Qerk
of the Master of the Rous, without any special order
previously obtained for that purpose, a proposal in writing
relative thereto ; but that no proceedings shall be taken on
such proposal unless the Attorney-General shall have been
servea with a summons in due course according to the
practice of the Court to appear on such proceedings, and
the Attorney-General shall also be at liberty in like manner
to lay any proposal touching the matters of this Scheme
before the said Chief Clerk.

Propert:fto 5. That the said Company shall keep the property

be kept in belonging to the Charity in good and sufficient repair, and

T^j^ shall also keep the same insured from fire, unless the

lessees or tenants thereof shall be by covenant bound to

repair and insure the premises, in which case the said

Company shall see that they keep such covenants.



6. That there shall be allowed to the Clerk of the ^^jj^^e-
Company, or to such other person as the Company sball ment.

in that behalf appoint, for the expenses of the Charity
and property thereof, 5/. per cent, on the income arising
therefrom, such poundage to include all expenses of
collection.

7. That the swd Company shall in every third year, on 4J^J!^ ^
the 1st day of June in such third year, or on some day bedepositMi
within ten days thereof, make up and deposit with the ^^J««*r*
Record and Writ Clerk in whose division the said cause cJeri?* *
of " Attorney-General v. Drapers' Company " is, a summary ofBc e.
account of the income of the Charity, and the expenditure

for the preceding three years.

8. That the clear annual income of the Charity shall be ^^^'
applied in the maintenance of Schools in Wales for the
instruction of Girls, and in maintaining, clothing, and pro-
viding portions for Orphan Inmates educated in snch
Schools, and in keeping up the Establislunent herein-
after provided. That the word ** Orpnan " used in this

Scheme shall be taken as meaning any Girl whose father
or mother shall be dead ; but in case of Candidates being
in other respects equally objects of the Charity, those who
have lost both parents shall be preferred ; and in carrying
out this Scheme the whole of the Diocese of Llandaff
shall be deemed to be in Wales, and preference shall be

SVen to that Diocese, both as to the priority and size of
e foundation to be established and maintained therein,
and that not more than one School shall be established
and maintained from the proceeds of the said Charity
beyond the limits of that Diocese.

9. That the said Company shall purchase out of the ^^^J^*®
funds of the said Charity ten acres of land, or such other ^^fS?
quantity as may be deemed necessary by the Court, in the Schocds.
neighbourhood of Cardiff, being within the present limits
of the Diocese of Llandaff, and also ten acres, or such
other quantity as in like manner may be deemed neces-
sary in or in the neighbourhood of Denbigh, as sites for
such Schools and the buildings to be attached thereto
respectively ; such sites to be previously approved of and
such purchases to be made with the approbation of the
Court.

10. That the said Company shall expend such sum as ^^'{^^^
shall be approved of by the Court m the erection of **•*"*" •
Schools ana premises, with suitable residences for the
Orphans, Matrons, and Assistants, and other inmates and
scholars, on the sites which may be so approved of, and
whidi shall be purchased as aforesaid; such erections to
be made and the said ffrounds to be laid out according to
a Plan or Scheme or rlans or Schemes to be approved of
by the Court.

11. That, for the purpose of a due and efficient manage- Lo ori
ment of the said Schools, each School shall be under the **"^"*'
superintendence of fifteen Governors, resident within
fourteen miles of the place where the School of which
they respectively shall be Governors shall be situate, and
which Governors shall in the first instance be appointed
by the Court; and the vacancies in the number hereby
fiixed shall, after the first appointment of Grovemors, l>e
filled up by the Drapers' Company ; and the Bishop of
the diocese in which any of the Schools shall be established
shall be ex officio a Governor of such School.

12. That no person shall be appointed or continue SjjJ^^^^*^
Governor who shall not be resident within fourteen miles,
as herein-before stated, and who shall not be rated to the
relief of the poor upon a rental of 30/., or who shall be or
become bankrupt, or take the benefit of any Act for the
relief of insolvent debtors.

13. That every person appointed a Governor shall, pre^ Qoremon
viously to his acting as such, sign a paper expressing his ^^^^^^
willingness to act as Governor, and perform the duties of
a Governor according to the rules hereby laid down.

14. That the Grovemors of the said School respectively Monttily
shall hold Monthly Meetmgs, which shall be held the first *^«^n«»-
Saturday in every month in the School premises, and shall
at such Meetings examine the monthly accounts of the
House Steward, and receive applications for admission to
the School, and shall admit as scholars such girls as they
shall see fit, over and above the Orphans to be maintained



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