Vice-Chancellor.-You do not advance the justice of the case by lending yourselves to the feelings of the clients; the best way is to discuss the case without reference to those things. Mr. Wetherell.—I agree with that, but when we hear charges of this kind- Vice-Chancellor.-I discharge you from every thing of that kind. I am quite sure it is not the object to load the Charity with expence; but I think that would be the effect of it. Mr. Wetherell.-I can assure your Honour we feel as much as the Court can, the objection to increasing expence, and we are most anxious to prevent expence and delay as much as we possibly can; but there is a necessity for taking this account effectively. It was our impression that, as the minutes stood, we could not go into the amount of charge and discharge, as we should in an ordinary case; and that we could not go into the charging of the estate of the late Mr. Jolliffe with annual balances. We were also of opinion (and I think that is now confirmed) that your Honour did not intend to pin us down to the ultimate and final balance. Vice-Chancellor. To remove all difficulty, I will add a few words. Let the Master be at liberty to state any special circumstances for the purpose of enabling the relators to raise any question with respect to interest. upon the debt that may be found due from the estate of Mr. Jolliffe. Mr. Wetherell.-Your Honour will permit me to observe, that if your opinion is given, I will not trouble you further; but there are other questions. We say that a Master was improperly appointed. If this account was to be taken in the usual mode, we should say to Mr. Jolliffe, you cannot discharge yourself by paying such a schoolmaster. Can they go into the propriety of that payment by affidavit? Vice-Chancellor.-Certainly not. I do not mean to say you should. Can I at the distance of thirty years, considering this gentleman has in the execution of his duty actually paid a part of this money to a schoolmaster, call back that money? It is not my purpose to do that. Address to me any charge, and I will give you an answer. I mean to give the Master no such latitude. Let that be so understood. Mr. Horne. So it was understood at the hearing. Mr. Wetherell.-Then there is the charge of building this school-room. Vice-Chancellor.-I certainly will not authorise the Master to enter into such an inquiry. I cannot, at this distance of time, when the trustee has authorised the building a school-room, say that it shall be questioned whether he ought to have done so, when he is dead, and EVERY ONE ABOUT HIM * dead. Mr. Heald. We feared it would be contended in the Master's office, that the word indebted was used without that definite meaning which the Court has been pleased to express, and that it was only a short mode of taking the account. Vice-Chancellor.-I have so often declared my intention, that I am surprised my view in the decree is not understood. I have so often called on parties to take the account in that mode. Mr. Heald.-After this day we shall understand it better: but I believe there is not a gentleman in Court who had not understood your Honour so to have directed, except in cases where the parties consented. Vice-Chancellor.-Where the parties whose accounts were to be taken have been before the Court, I have required their consent to direct it in that form, but not when they were dead. I will add these words, Mr. Wetherell-" Let the Master be at liberty to state any special circumstances for the purpose of raising any question with respect to interest on any balance that may be found due from the estate of Mr. Jolliffe." I think that can never be misunderstood by the Master. Then I will add, or otherwise," that is, to state other special circumstances in order that the Master may not refuse that which I think you entitled to; " that the Master may be at liberty to state any special circumstances for the purpose of raising any question with respect to interest on any balance that may be Vide ante, p. 41. found due from the estate of Mr. William Jolliffe, or otherwise, at the request of either party." Mr. Heald. The next alteration is one which they have introduced in the minutes, and which I can hardly think the Court will adopt. The Court referred it to the Master generally, to approve a new scheme; they have introduced these words, “ refer it to the Master to approve of a new scheme, by which the present sum of 601l. 11s. a year can be best applied." That may be the future income, or it may not. Vice-Chancellor.-I cannot introduce those words. Mr. Wetherell.-There is another alteration in the minutes, which I believe is asked for on both sides. During the progress of the information, I understand, Mr. Thomas Samuel Jolliffe resigned. At the Bar, I understand, Mr. John Twyford Jolliffe also proposed to retire. Now under these circumstances, I apprehend it should appear upon the minutes that both these gentlemen are discharged. I understand there is a little criticism on the other side between the word removed and the word discharged. They propose the word removed instead of discharged. Whether there is a superior leniency in the word removed instead of being discharged-whether it is a molliter amoveas manu-I do not comprehend, but it must appear that both those gentlemen were removed or discharged. Mr. Horne-It is not worth a word: but the fact is Thomas Samuel Jolliffe had previously retired, and a new trustee had been appointed. He resigned three years ago; therefore, perhaps, it may be necessary to inquire whether that gentleman who succeeded him was properly appointed? One of the inquiries is, whether two gentlemen were properly elected? perhaps it would be better the inquiry should extend to whether this gentleman also is properly elected? Vice-Chancellor.-I could not take notice of it in the manner you desire me to do, but I rather think it has been held, that a trustee appointed pending an information, without the authority of the Court, where one object of the suit is to remove trustees, is wholly irregular. Mr. Horne.-I have no doubt of it, and I have not mentioned it with a view to the Court approving of that election, but that the Court should be aware of it. Mr. Skirrow. This information was to impeach the title of all the trustees. Mr. Horne.-Yes, I know that. Mr. Wetherell. Then it stands thus:-" Thomas Samuel Jolliffe and John Twyford Jolliffe, by their counsel, consenting to retire from being trustees of the said charity." We are not very particular about giving them the word removed instead of discharged. That is not a matter I shall enter into that is only one of the alterations proposed on the other side, they were so willing to abide literally by this copy. Mr. Heald.-There was no notice given to us till after the hearing that this gentleman had retired. Vice-Chancellor.-A trustee cannot retire where there is real estate without executing a conveyance. Mr. Skirrow. It is all personal property: there is a school-house I understand, but the legal estate is in the heir of the original founder. Vice-Chancellor.-We cannot act upon the retirement, on the statement of Counsel. Mr. Heald.-The Master must inquire whether he has in point of fact retired. Vice-Chancellor.-No; it must be taken as a retiring now at all events -that is my reason that I should upon that retirement (whether it is accurate or not is perfectly immaterial) proceed. Mr. Heald. I do not know that it is material here; but a trustee may, in many cases, get rid of every responsibility by such a statement. I am sure if it had been stated to the Court, at the time the decree was made, the Court would have proceeded differently. Mr. Thomas Samuel Jolliffe had not attended for thirty years, and the Court was of opinion he must be No. The Trustees purchased the FREEHOLD LAND on which the College was built.-Eprror. considered as a mere dead letter; but the regulation is, that they shall be appointed by a certain number of trustees: the very removal of Mr. Thomas Samuel Jolliffe and the other gentleman would render his appointment null, Mr. Skirrow.-If Mr. Heald took the trouble to read the schedule, he would find that was not the case. Mr. Horne.-The Court gave no judgement on any of the trustees de facto, except the two trustees who are to retire. Then there are other trustees, as to whom the Court has directed an inquiry whether they are properly elected. Vice-Chancellor.-I think, on reading these minutes, they are wrong. Refer it to the Master to appoint two new trustees in their place. Mr. Horne. It is agreed on both sides to have that struck out; that that shall be deferred till it is seen whether those two gentlemen are properly elected. Vice-Chancellor.-It will stand thus:-The defendant, Thomas Samuel Jolliffe, by his counsel, stating that he retired from being a trustee of the said charity on or about such a day, and the defendant, John Twyford Jolliffe, by his counsel, now consenting to retire from being a trustee, the Court declares that they have ceased to be trustees accordingly, or, in the words of the minute before me, that they are hereby discharged. Mr. Horne.-It is perfectly immaterial. Mr. Wetherell.-Their word was removed. Mr. Horne.-I think your Honour's present declaration is more correct. Mr. Wetherell.—I gave up the stronger word and adopted the more lenient in a moment. Vice-Chancellor.-Suppose you were to take it in these words, that would be more according to the proper phrase; the Court cannot discharge men that have already retired. I think the better way would be to say, the defendant Thomas Samuel Jolliffe, by his counsel, stating that he retired from being a trustee of the said charity on or about such a day, and the defendant John Twyford Jolliffe, by his counsel, now consenting to retire from being a trustee of the said charity estate, the Court declares that those two gentlemen have ceased to be trustees of the Charity. Mr. Heald. The next is the account of Mr. Hylton Jolliffe. If it stood in the way it does, it might be doubtful whether the Master could report the annual balances. We propose to add words to meet that. Mr. Horne.-We will not object to those words. Mr. Horne.-I believe so, Sir. Vice-Chancellor.-Mr. Bell, you have often heard me make the remark what a great difference it makes in the Master's office, what is the form of the decree? In reading a decree, you would suppose it was the same thing, whether the Court directed the Master to inquire whether A. B. was indebted at his death, or to send it to the Master to take an account of the receipts and payments of A. B.; it looks upon the surface to be the same thing, but it is a matter which makes, in the way of expence, a difference which is incalculable. Mr. Bell. I have certainly asked your Honour frequently for it in that way. I DID NOT KNOW your Honour had, IN CONTESTED CASES, ever so directed it. I never recollect a case where the distinction was made of a deceased trustee. Vice-Chancellor.-Where the party was living, and before the Court, I have only recommended to the parties to do it; but where the man is dead, and the account is for thirty-four years before his death, there it becomes a duty. Mr. Heald.-It appeared to me that the words "taking an account" were the usual words. I was NOT aware that the Court ever made a distinction, but I do remember a case where it was 40 years instead of 30, where a man left money for the purpose of improving the Edgware road. It was pressed against the Brewers' Company, before Sir William Grant, that, from the great length of time, the account was highly inconvenient; and, in order to meet that, the Court directed the account to be limited to the time the demand was made-that was 20 years. Mr. Horne. That was against a corporation. Vice-Chancellor.-Just so. Where a party is dead, it is possible the Master may find him indebted, and yet not be able to take the account. Mr. Bell.-A case is likely to come on before your Honour, in which Sir William Grant made a decree, which has been affirmed by the present Master of the Rolls, for an account which began in the time of Charles the First-that is coming on before your Honour on Exceptions. Mr. Wetherell.-It is very desirable, certainly, and must be the object of all parties, to shorten the inquiry as much as possible, only attaining the objects which are necessary for the protection of the Charity. THE DEFENDANTS' PETITION AND APPEAL. Defendants' Petition and 5th June 1823. BETWEEN his Majesty's Attorney-General, at the Jolliffe, Thomas Samuel Jolliffe, Samuel Twy- To the Right Honourable the Lord High Chancellor of Great Britain. THAT [here the Information and Answers are set forth short] That the said informant replied to the said answers of your petitioners, and issue was joined in the said cause, and witnesses were examined by the said complainants, and the said cause came on to be heard before his Honour, the Vice-Chancellor, on or about the eighteenth day of November, one thousand eight hundred and twenty-two, when his Honour was pleased to order and declare (among other things) That it should be referred to Mr. Harvey, one of the Masters of this Court, to enquire whether William Jolliffe, deceased, in the pleadings named, the father of the defendant Hylton Jolliffe, died indebted in any, and what sum to the Charity in question, and that the said Master should enquire whether the defendant Hylton Jolliffe possessed assets of the said William Jolliffe his father, applicable to the payment of such debts, or any or what part thereof. And the said Master was to be at liberty to state any special circumstances for the pur pose of raising any question with respect to interest on any balances which might be found due from the estate of William Jolliffe, deceased, or otherwise, at the request of either party. And that it should be referred to the said Master to approve of a new scheme for the future conduct and regulation of the Charity, having regard to the will of Richard Churcher the founder, and the Act of Parliament in the pleadings mentioned, and the said Master was to state the same, with his opinion thereon. And the said Master was to take an account of the trust funds of the said Charity possessed by your petitioner Hylton Jolliffe, or by any other person, or per sons, by his order, or for his use, or on his behalf, in each year since the time of the death of the said William Jolliffe, and of the application thereof. And for better taking the said accounts and discovery of the matters aforesaid the parties are to produce before the said Master, upon oath, all books, papers, and writings, in their custody or power, relating thereto, and were to be examined upon interrogatories, as the said master should direct, who in taking the accounts was to make unto the parties all just allowances. And his Honour did reserve the consideration of all further directions, and the appointment of a new trustec, or trustees, and the costs of this suit until after the said Master should have made his general report. And the said Master was to be at liberty to make one or more separate report or reports in respect of any of the matters aforesaid as he should think fit, and any of the parties were to be at liberty to apply to this Court as they should be advised. By which part of the said decree, your Petitioners conceive themselves aggrieved. Your petitioners therefore most humbly appeal from such part of the said decree as hereinbefore set forth, and humbly pray your Lordship to hear the said cause, so far as it relates to that part of the said decree, and appoint some short day for that purpose, and your petitioners shall ever pray, &c. We humbly conceive that this cause is proper to be heard before your Lordship, if your Lordship shall think fit. 5th June, 1823. (Signed) WILLIAM HORNE, THE RELATORS' PETITION AND APPEAL. BETWEEN his Majesty's Attorney-General, at the |