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The Pamphlet Collection of Sir Robert Stout: Volume 77

The Reasons for the Court of Appeal Judgment

The Reasons for the Court of Appeal Judgment.

Their Lordships say it is too narrow a view of the transaction to say "that there was no general purpose of charity, but only an intention to erect a specific school on a specified site." They add that that view of the transaction "is at variance in their Lordships' opinion with the express terms of the gift, and opposed to principles laid down in recognised authorities such as the Attomey-General v. the Bishop of Chester, 1, B.C.C., 444, and the Incor-porated Society v. Price, 1, J. and H., 498."

The two grounds on which the Court of Appeal relied were (1) the Crown was deceived, and the following quotation from the judgment of the Court of Appeal will show how it dealt with that branch of the case:—

"The Crown is informed that something is going to be done, and that a grant of land will assist what is going to be done. A grant is made in anticipation of this something being done, and because it is going to be done. Then the thing is not done. The Crown is thus deceived in the consideration for the grant. The law is thus stated in Barwick's case, 5 co., 94, Bacon's Abridgement F.: 'It is a maxim that if the consideration which is for the benefit of the Queen, page 12 be it executed or executory, or be it on record or not on record, be it not true or not only performed, or if prejudice may accrue to the Queen by reason of nonperformance of it, the letters patent are void,'" etc.

Their Lordships get rid of this branch of the judgment by denying that the Crown was deceived. They do not state that the law laid down by the Court of Appeal is wrong. (2) The other branch of the judgment is founded on the use of the words in small capitals in the following extract from the grant:—

"In trust nevertheless and for the use and towards the maintenance of the said school so Long as religion education, industrial training and instruction in the English language shall be given to the youth educated therein or maintained thereat."

Were the words so Long as words of limitation, and did the grant lapse if its purpose were not fulfilled? The case of Attorney-General v. Pyle, 1 Alk., 435, was a somewhat similar case It was there held the gift was only given "quousque," and when it ceased, the gift returned to the owner or his heir. This branch of the case is not dealt with in the judgment of their Lordships further than by saying:—

"Now as it is common ground that no school was ever established at or in the neighborhood of Porirtua, it would seem to follow that the occasion on which the trust according to the construction placed on the grant of the Court of Appeal was to cease and deter mine never arose, and never could have arisen."

I must assume, coming as it does from the highest judicia tribunal of our country, that this is the law. The results are somewhat peculiar. If the Bishop had established the school in 1851 and continued it up till 1858, the land might have reverted to the Crown, but as he never did establish the school, it never could as vert.