156 CHAPTER X. ROMAN CATHOLIC CHARITIES OUT OF ENGLAND. THE 2 & 3 Will. IV. c. 115 was confined to Great Britain. The 17th section of the 31 Geo. III. c. 32, provided for the reservation of the whole law of superstitious or unlawful uses from the operation of that act, and especially that portion of it which related to the foundation, endowment, or establishment of "any school, academy, or college, by persons professing the Roman Catholic religion within these realms," or their actual dominions. This provision extended to all charitable dispositions, whether within the British empire, or beyond it. Between the passing of this act and the 10 Geo. IV. c. 7, therefore, there can be no doubt but that the former statutes against sending relief to foreign Roman Catholic establishments continued in full force (i). But for the reasons given in the last chapter, it is submitted that these are now no longer capable of being enforced, except as against disqualified Roman Catholics. There is certainly a greater difficulty in coming to such a conclusion in the case of express enactments, than there is where the illegality of the disposition was originally nothing more than a presumption occasioned by enactments which have since been repealed. Still the effect of the 10 Geo. IV. c. 7, being, as the author contends, to repeal the 17th section of the 31 Geo. III. c. 32, the combined effect of the two enactments, when read together, will be to bring these foreign endowments for education or other charitable purposes within the scope and meaning of the 4th section of the earlier statutes. Therefore the better opinion seems (i) 27 Eliz. c. 2, s. 6; 3 Car. I. c. 2, ante, pp. 56-9. to be that any Roman Catholic, who is qualified under the Relief Acts, may now lawfully bestow his bounty upon any foreign or colonial objects of charity, as he might have done had the penal enactments cited below never been passed. In this view of the matter a few practical observations on the extent to which the courts will go in furthering the intentions of a donor of this description, may not be without their utility. Whenever a charity is to be established out of England, the Court of Chancery has no general jurisdiction to administer the fund. It contents itself with directing payment or transfer to be made to the trustees or instruments of the donor's benevolence, leaving them to the exercise of their own discretion under the control of the foreign courts. Thus (k) Lord Hardwicke directed the transfer to the nominees of the plaintiffs, upon the trusts of the will, of the sum of 3,5007., South Sea stock, bequeathed to the plaintiffs for the maintenance of poor labourers in Edinburgh. His lordship was of opinion that he could not give any directions as to its distribution; that belonging to the Scottish courts. So too in Emery v. Hill (1), where the petition had not been served on the attorney-general nor any other party in the cause, Lord Gifford, M.R., ordered the transfer of 28,8447. 15s. 4d. Bank 3 per cent. to the treasurer of the Scottish Society for Propagating Christian Knowledge, to whom it had been bequeathed by the testator; and for the payment of all dividends then in court to the same officer. A similar order was made in the case of an Irish charity (m), by Sir John Leach, M.R. So too in Minet v. Vulliamy (n), stock producing 1907. long annuities, which was the subject of bequest to a charity in Switzerland, was transferred to the attornies of the officers of that charity by the Master of the Rolls' order, notwithstanding the re (k) Provost, &c. of Edinburgh v. Aubery, Ambl. 236 (by Blunt). (4) 1 Russ. 117. 79. (m) Collyer v. Burnett, Taml. (n) 1 Russ. 113, note. commendation in the master's report that the income alone should be paid over; as it was the intention that the charity should be perpetual. In Martin v. Paxton, cited in Emery v. Hill (o), the Lord Chancellor ordered a fund bequeathed by the testator in India to a charity at Lyons, to be paid to two of the plaintiffs, attornies of their coplaintiff the mayor of Lyons. Under Archbishop Tennison's codicil, dated the 2nd of September, 1715, and a decree made in February, 1717, the Society for the Propagation of the Gospel in Foreign Parts became entitled to the sum of 1,000l., to be applied by them in America upon a certain event which did not happen until 1824. The fund at this time amounted to considerably more than 10,000l. Upon a bill being filed by the society, it was insisted for the crown, that the court ought not to part with the fund, but settle a scheme for its administration. But Sir John S. Copley, M.R., ordered that the fund itself, although much larger than the testator intended them to administer, should be transferred to the society; as he had reposed his confidence in them. But, in another case (p), the decree ordered that the money arising from the sale of a moiety of the testator's estate should be laid out in the purchase of 3 per cent. consols, in trust in the cause, and the dividends were to be paid to the minister and officers of the Scottish parish mentioned in the will, for the benefit of the charity designated by the testator. Why the decree was limited to the payment of dividends, and did not embrace the transfer of the fund, does not appear from the report of that case. But it is certain that this departure from the general rule did not proceed upon any intention to control the management of the charity. The Lord Chancellor, reversing so much of the decretal orders as directed the execution of a scheme approved by him for the management, remarked that "the gift was good, but that the sort of charity to (0) 1 Russ. 116. (p) Att. Gen. v. Lepine, 2 Swanst. 181; S. C. 1 Wils. 465. be established would be a subject for the determination of the proper court in Scotland." There is no doubt, however, that so long as the fund itself was retained by the court, it continued to possess an indirect jurisdiction over the charity; which in its discretion it might or might not think fit to exercise. It was in this way that the right of jurisdiction arose in a case that very lately came before the Vice Chancellor of England (q). This was a cause petition presented by the eldest son of the testator, Edward Raphael, alleging mal-administration of a foreign charity founded under the testator's will, and praying an account of the fund, the settlement of a new scheme, and the future administration of the charity in this country. The testator, an Armenian merchant at Madras, by his will, in 1791, bequeathed the interest of a certain fund to be applied in the first place to the accomplishment of a literary purpose, and afterwards he directed that the whole of the interest arising from the said fund should be applied for the fund of a school for poor Armenian boys in such number as might be sufficient, but so that the boys and their masters could live decently; and that the Reverend Nicholas Pusani should be appointed as the director and manager of the said works and school for all his lifetime, and should be at liberty to appoint his successors to do and perform the said disposition. In 1792 Pusani executed a notarial act by his description of monk of the convent of S. Lazarus at Venice, whereby he appointed the abbot-general of that convent and his successors, the directors and managers of the charity and depositories of the fund. In 1825 this suit was instituted in England by the surviving executor of the testator for the administration of the charity, and the usual reference was made to the master as to the nature of the fund and how it was to be paid. The petitioner was the only person who attended the (4) Cockburn v. Raphael. Before Sir L. Shadwell, Hilary Term, 1842, MS. Case; now on appeal before the inquiry, and at his suggestion the master made his report certifying his opinion that the charity should be founded at Venice, but that the fund should remain invested here in the name of the accountant general, and the dividends paid from time to time to the abbot of S. Lazarus for founding and supporting the charity. The court confirmed this report, and directed the interest to be paid to the then present abbot of S. Lazarus, and, after his decease, to the abbot of the said convent for the time being for ever, upon trust for founding and supporting the charity according to the trusts of the testator's will; and all parties were to be at liberty to apply to the court concerning the charity or the charity fund. Upon the merits disclosed by the affidavit of the Archbishop of Surini, abbot-resident at the convent of S. Lazarus, the Vice-Chancellor dismissed with costs the petition as officious and unwarrantable. But his honour considered that the decree already pronounced by him made it useless to discuss the question of jurisdiction in general. The court had made certain specific directions upon the master's report. It is true that that decree appears to have been in a manner taken by consent, and founded upon a report embodying the ex parte suggestions of the petitioner, so that, virtually, he himself framed the report. But his honour is said to have observed, that as no petition of rehearing had been presented against that decree, he was as much bound by it, (though it was pronounced by himself,) as he should be by a decree of the Lord Chancellor. However, his honour considered that upon a great change of circumstances, such as the destruction of the convent, a foreign conquest of Venice, or the like, or upon gross and hopeless mismanagement being made out,—the court would interfere and alter the present scheme; if the application were made in a proper manner; but not, as it seems, by petition. So too, in The Attorney General v. The Mayor of London (r), the executors had agreed to pur(r) 3 Br. C. C. 171. |