The Act also contained a power to the Trustees to borrow Money at Interest, or by way of Annuity, upon the credit of the Rents, Rates, and Assessments before mentioned, the sums so borrowed to be applied only for the purposes of the Act. It likewise provided that if the Rents arising from the allotments of the Land should be more than sufficient to defray the Expenses of executing the purposes of the Act in the Town of Great Bolton, and there should be no Money due on Mortgage or Annuity, on the credit of the Rents, Rates, and Assessments, in every such case the Overplus remaining in the hands of the Trustees on the 29th of September in every Year should be by them paid over to the Overseers of the Poor of the Town of Great Bolton, for the time being, to be by them applied in the same manner as the Rates for the relief of the Poor within the Town. The Act contained a clause enabling the Commissioners to sue and be sued in the name of their Secretary; and also a clause giving jurisdiction to the Duchy Court of Lancaster as to all matters of a Civil nature relating to the purposes of the Act. Another Act for granting further power for improving the Town of Great Bolton was passed in the 57th Geo. 3. By this Act further powers were granted to the Trustees appointed under the former Act, enabling them to re-sell certain. Lots of Bolton Moor, for the purposes of the Act; and it was enacted, that no person should act in the capacities both of Clerk and Treasurer; and that the Trustees should cause a Book to be kept by their Clerk, in which such Clerk should enter a regular Account of all sums of Money paid and received on account of the two Acts of Parliament, and for what the Sums 1824. ATTORNEY 2. HEELIS 1824. ATTORNEY v. HEELIS. were paid, which was to be open to the inspection of any person who should pay to any Rate or Assessment to be made under the Act; and all such persons were to be at liberty to take Copies thereof and inspect them. After setting forth these Acts, the Information and Bill stated, that the Commissioners and the Trustees had proceeded to allot and dispose of Bolton Moor, and had paid over into the hands of their Treasurer large sums of Money produced from that source; but had expended these Sums in a manner which the Plaintiffs could not discover; and had not applied them for the purposes required by the Acts of Parliament: That the Sums received for Rents of the Allotments were very large, and were sufficient for the purposes of the Act, without borrowing any Money or levying any Rate; but that no Accounts had been kept or entered in Books according to the directions of the Act of Parliament : That the Defendants had refused to allow the Plaintiffs to inspect their Books, and that the Clerk of the Defendants had, under their directions, refused such Inspection: That the Defendants had misapplied the funds received under the Acts of Parliament, and had alleged that the Funds received from the Rents were insufficient for the purposes of the Act, and imposed upon the Inhabitants of Great Bolton a Rate of Sixpence in the Pound under the powers conferred by the Acts, and had issued Warrants of Distress to levy this Rate. The Information and Bill charged that no Rate was necessary; that this was the first Rate which had been imposed under the authority of the Act, and that it had been imposed by a very small majority of the Trustees, and since it had been imposed that several of the Trustees It 1824. had declared that no such Rate was necessary. therefore required the Trustees to discover how the Funds had been applied by them, and insisted that, under the circumstances mentioned, the Defendants should be prevented from enforcing the Rate, and charged that they had no other means of preventing the Warrants of Distress for levying the Rate from being executed, but by the interference of this Court. The prayer was, That the Trust Funds vested in the Defendants might be administered under the direction of the Court: That an Account might be taken of all the Estates, Rents, and Property vested in the Defendants under the Acts of Parliament set forth in the Information, so far as those Acts related to the Town of Great Bolton; and also an Account of all Payments duly made by the Defendants; and that it might be declared that the Defendants were personally liable to pay, and might be decreed to pay what should be found, upon taking the Accounts, to have been improperly expended by them; and that it might be declared that the Rate or Assessment mentioned in the Information ought not to be raised, and ought to be quashed; and that the Defendants might be restrained by Injunction from issuing any warrants of Distress for levying the Rate. To this Information and Bill the Defendants put in a general demurrer for want of Equity. Mr. Horne and Mr. Pemberton for the Demurrer:I. No six individuals, nor any number of individuals, have a right to institute such a Suit as this. The question is one of the greatest importance. In a Case lately ATTORNEY V. HEELIS. 1824. ATTORNEY GENERAL v. HEELIS. before the Lord Chancellor, Jones v. Del Rio, where certain Subscribers to the Peruvian Loan filed a Bill on behalf of themselves and all other persons Subscribers to the Loan, for an account of the Subscription Monies, and to rescind the Contract, the Lord Chancellor held that a Party was not entitled thus to assume the character of representative of all the Subscribers, and had no right to maintain such a Bill. Upon the present case it must be decided, whether any Five or Six Paupers in a Town have the right to institute a Suit on behalf of themselves and the People of the Town, against all the principal Inhabitants, touching any Assessments for local and public purposes? II. The Funds in this Case are not a Public Charity. Attorney General v. Brown (a). In that Case the Court went a great way to hold that Funds arising under an Act of Parliament, and applicable to a public purpose, were Charitable Funds. But in this Case, where the Funds in respect of which alone the Plaintiffs are interested, arise merely from an Assessment under the authority of an Act of Parliament, for the purpose of improveing a Town, it is going a step farther than any authority warrants to consider it as the case of a Public Charity. III. If there has been such misconduct as the Information alleges, the proper course was to take proceedings at Law, and not to come to the Court of Chancery. Besides these objections, the clauses in the Act of Parliament which give jurisdiction to the Duchy Court of Lancaster, and which direct that the Commissioners shall sue and be sued in the name of their Treasurer, who is (a) 1 Swan. 265. the party possessed of all the Funds, are strongly against the right to institute such a Suit as the present. Mr. Hart and Mr. Spence for the Relators and I. The main question is, whether the subject of this Suit is not a Charitable Institution, in the enlarged sense in which this Court considers the term Charity? According to all the principles on which this Court acts, and according to all the authorities on which those principles have been stated and recognized, this must be held to be a general Charitable Institution, in which all the Inhabitants of the Town of Great Bolton are interested. In Howse v. Chapman (b), where a Testator gave by his Will portions of his Property to his Executors, to be by them converted into Money, and directed certain Payments to be made out of the Money so to be produced, and went on in these words, "And in the next place, my will is, that the Residue of the Money be appropriated to the improvement of the City of Bath, and be placed by my Executors in the Bank of Messrs. Hobhouse & Co. in this City, at the rate of three per Centum per Annum, and that it shall be be drawn out of the said Bank as the Improvements shall require." Lord Rosslyn declared that these words constituted a Charitable Bequest. It is, therefore, clearly established, that a gift by an Individual of Funds for the improvement of a Town, constitutes a Charity. But it was not necessary that the Fund should proceed from the gift of an Individual, provided it were applicable for a general public purpose. Here there was a general dedication of the Property, which, though it flowed from the Parish at large, was as much a Chari (b) '4 Ves. 542. 1824. ATTORNEY v. HEELIS. |