IMAGE EVALUATION TEST TARGET (MT-3) o'^.V^fe 1.0 LI 1.25 l^|2.8 ■ 50 "1^ ^ 1^ 1.4 2.5 2.2 1.6 ^ Z ^1 r ^7;. %' '» (?^ r^;%v Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 ^ ClriM/ICMH Microfiche Series. CIHM/iCMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian da microreproductions historiques ^ t \ ■^. \ S;^ O^ Technical and Bibliographic Notas/Notas tachniquas at bibliographiquas Tha Instituta has anamptad to obtain tha beat original copy available for filming. Features of this copy which may be bibliographicaliy unique, which may alter any of tha irnagea in the reproduction, or which ;-nay significantly change the usual method of filming, are cnecked below. Coloured covers/ Couverture de coulaur rn Covers damaged/ Couverture endommagia Covers restored and/or laminated/ Couverture restaur^ et/ou pelliculia Cover title missing/ Le titre de couverture manque Coloured maps/ Cartes giographiquas en coulaur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustration? en couleur Bound with other material/ Re!i^ avac d'autras documents D n n Tight binding may cauf a shadows or distortion along interior margin/ La re liure serr^e peut causer da I'ombre ou de la distorsion lo long de la Liargo intirieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajouties lors d'une restauration apparaissent dans le texte. mais, lorsque cela itait possible, cas pages n'ont pas 6ti filmAes. Additional comments:/ Ccmmentaires suppl^mentaires; L'Institut a microfiimi le meiileur exemplairs qu'il lui a iti possible de se procurer. Lns details de cet exemplaira qui sont peiit-dtre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la m^thoda normale de fiimage sont indiqute ci-dessous. |~~| Colour'^d pages/ Pages de couleur Pagan damaged/ Pages endommagies Pages restored and/oi Pages restaurdas et/ou petlicul^es Pages discoloured, stained or foxei Pages ddcolor^es, tacheties ou piqudes Pages detached/ Pages d^tach^es SKowthrough/ Transparence ^ Quality inigale de I'impression Includes supplementary materia Comprend du materiel supplimentaire Only edition available/ Seuie idition disponible I I Pagan damaged/ I I Pages restored and/or laminated/ ryi Pages discoloured, stained or foxed/ rf\ Pages detached/ rfi Showthrough/ r~~| Quality of print varies/ I I Includes supplementary material/ pn Only edition available/ D Pages wholly or partially obscured by errata slips, tissues, etc., have been ref limed to ensure the best possible image/ Lea pages totaiement ou partiellement obscurcies par un feuillet d'errata, une pelure. etc., ont iti filmies A nouveau de facon k obtanir la meilleure image possible. This item is filmed at the reduction ratio checked below/ Ce document est film* au taux de reduction indiquA ci-dessous. 10X 14X 18X 22X 12X 16X 20X y 26X 30X 24X 28X 32X Th« copy filmed h«r« haa baan raproducad thanka to tha ganaroaity of: Ligiiiature du QuAbee Quebec Tha imagaa appaaring hara ara tha baat quality poaaibia conaidaring tha condition and lagibility of tha original copy and in icaaping with tha filming contract spacificationa. Original copiaa in printad papar covara ara filmad beginning with tha front covar and anding on tha laat paga with a printad or illuatratad impraa- sion, or tha bacic covar whan appropriata. All othar original copiaa ara filmad beginning on tha firat paga with a printad or illuatratad impraa- aion, and anding on tha laat paga with a printad or illuatratad impraaaion. Tha laat recorded fpama on each microfiche •hail contain the symbol —•»( meaning "CON- TINUED"), or the symbol ▼ (meaning "END"), whichever appiiea. Mapa, plataa, charts, etc.. may be filmed at different reduction ratioa. Thoae too large to be entirely included In one exposui'e are filmed beginning in the upper left hand comer, left to right and top to bottom, aa many framea aa required. The following diagrama illuatrate the method: L'exemplaire fiimA fut reproduit grdce A la gin^roaiti da: Legislature du Quibee Quebec Lee imagea suivantae ont «t* raproduitea avec le plua grand soin. compta tenu de la condition at de la nettet* de l'exemplaire film*, et an (jonformiti avec lea conditiona du contrat de flimage. Lea axemplairea originaux dont la couvertura an papier eat imprimte sont fiimte an commandant par le pnmimr plat at an tarminant soit par la darni^re page qui comporte une amprainta d'impraaaion ou d'liluatration. soit par la second plat, salon le caa. Tous lea autrea •xamplairea originaux sont filmte an commandant par la premiere page qui comporte une ampreinte dlmpreaaion ou d'liluatration at an tarminant par la demiAre page qui comporte une telle empreinte. Un dea symbolea suivanta apparaitra sur la domiAre image de cheque microfiche, selon le caa: le symbole — »> signifie "A SUIVRE", le aymbole V signifie "FIN". Lee cartee, planchea. tableaux, ate, pauvent dtra fiimte A dea taux da rMuction diffirents. Loraque le document eat trop grand pour dtre reproduit en un seui clichA. il est fiimA i partir de I'angle sup^rieur gauche, de gauche d droite. et de haut en baa. an pranant la nombre d'Imagaa nteassaira. Las diagrammes suivanta iliuatrent la m^thode. 1 2 3 1 2 3 4 5 6 t\ M [^\' f'-. 2 1865. Wslr T. Matbleaon. CHANCERY REPORTS. master or masters, tutor or tutors, and such other officer or officers as to the trustees should seem meet, and further, " that if any complaint respecting the conduct of the principal, professor, master, tutor, or other officer be at any time made to the board of trustees, they may institute an inquiry, and in the event of any impropriety of conduct being duly found, they shall admonish, reprove, suspend or remove the person offending, as to them may seem good. Provided always* that the grounds of such admonition, reproof, suspension or removal, be recorded at length in the books of the said board." That in the year 1853 the Rev. John Oooh, D.D., (first principal of the college, and one of the defendants,) was directed by the board of trustees to proceed to Scotland, and procure professors for the college ; and plaintiff, who was then filling the permanent office of Btotement, Rector of the Grammar School of Banff, was desired by him to accept the professorship of Classical Literature in Queen's College, and in September of that year, plaintiff, being still in Scotland, accepted such office at a salary of £350 a year ; and in October following entered upon the discharge of the duties of such professorship, and was then duly confirmed by the board of trustees, since which time plaintiff had con- tinued faithfully to perform and discharge the duties thereof until the month of February, 1864, when he was hindered and prevented in the discharge of such duties by the wrongful, improper and illegal acts of the trustees ; they having, on the 18th day of that month, passed the following resolution : "Besolved, that from the facts which have come to the knowledge of the trustees, and the present alarming state of the college, the trustees deem it necessary, and in the interest of the college, to remove Professor Weir from the office of Professor of Classics, and Secretary to the Senatus, and in the exercise of their power to 'A-S . CHANCERY REPORTS. 8 I ^An « remove at discretion, they hcr'jby do remove liim 1805. from those offices accordingly forthwith ; and that the """^^^ treasurer do pay to him his sahiry in full to the end of M,thi«on. the present session, and for six months thereafter, in lieu of notice ; and that the secretary be instructed to. communicate this resolution to Mr. Weir," which, on being communicated to plaintiff, ho refused to recognise as valid, or to acquiesce therein in any- wise : and notwithstanding such resolution plaintiff endeavored to perform, and would have performed, the duties of his professorship, but that the board of trustees had excluded him. The bill further alleged, that by means of gifts, donations and bequests from numerous members of the Church of Scotland, and others, and from other sources, the college was possessed of a large property, and from the annual income arising therefrom, and from any grant of money from the legislature, the board of statement, trustees paid and discharged the salaries of the professors and other expenses of the college, in accordance with, and under, and subject to, the direc- tions, provisions, powers and authorities in the said letters patent contained ; that the Royal Charter was granted to the intent that the members of the Church of Scotland in Canada might have and enjoy a university and college, with similar powers and privileges, and upon the model of the University of Edinburgh, and the charter, in making provision for the appointment and removal of professors, had in view professors enjoy- ing similar offices, and fulfilling similar duties to the professors in the University of Edinburgh; and that similar customs and usoges should apply to and be associated with such professorships, and that the nature of such office and employment should be similar in the two universities. In the University of Edinburgh the tenure of the office of a professor is ad vitam aut culpam, that is, during the life of the incumbent, unless removed for impropriety of conduct ; and the plaintiff submitted CHANCERY UEPORTS. 1865. that, under tho charter, such is the tenure of the •~^^"~' professorship held by him in Queen's College, and „ 1; such was the condition under which he accepted his Uatbieion. ^ appointment. Tlio bill further alleged, that the resolution of the 18th of February was passed by the board of trustees without the plaintiff being present — without his being notified or requested to appear before the board — without his being notified of any charge or complaint being preferred against him ; and without the board having called upon him to make any defence; and without having asked from him any explanation whatever. The bill further alleged, that such resolution had been passed by the board of trustees acting on an ex parte statement of the defendant Leitch, tho statement, principal of the college, which statement had been read to, but not entered on the minutes of the board : that at a meeting of the trustees, held on the 26th of February, 1863, they assumed to pass certain statutes or ordinances, which tho phvintiff alleged to be illegal, amongst others, one declaring that all officers should be appointed by, and hold office only during the pleasure of, the trustees, except in cases where a special agreement had been or might be made: that the trustees might on their own motion, and without complaint being made, deal with the principal, professors, and other officers, when taey saw cause, without recording the grounds of censure, suspension, or removal ; and, on removal, such ofiScer should be entitled to claim salary up to the date of his removal: that the passage of these statutes created great dissatisfaction and discontent amongst the pro- fessors, and that the alarming state of the college referred to in the resolution of the 18th of February, 1864, was solely caused by these obnoxious statutes, and the refusal of the trustees to pay any regai*d to the remonstrances made to them in respect to such statutes, <-> i . ; CHANCERY REPORTS. <)'^> i ^ and the plaintiff did not cause or originate such a state I8G6. of things : that the meeting of the trustees of the 9th of ^-•'v-w Fehruary, 18U4, was illegal and contrary to the charter, ^v*'' not being duly summoned or convened, it professing to bo an adjourned meeting from the third of the same month, when only three of the trustees were present, who had no power to adjourn, and no notice was given as prescribed by the charter, to the other trustees, of the meeting on the 9th. Other charges were introduced into the bill as to the defendant Leitch influencing the trustees against the plaintiff, but these it is considered are immaterial to the present report : and the bill asserted that even if the statements of the defendant Leitchv/erc true, the trustees were not justified in passing the resolution complained of. The prayer was that the resolution might be declared illegal and void, as having been passed at a meeting not duly held ; when no complaint was made statement, against the plaintiff, and no impropriety of conduct on his part proved ; that it might also be declared that such resolution was a breach of trust, and contrary to the charter, inasmuch as such resolution was passed without proper deliberation and consideration, and under the influence of prejudice; that the statutes referred to might be declared illegal and void; that it might be declared that plaintiff was entitled to hold and enjoy his said oflSce in the college until duly removed or suspended therefrom for impropriety of conduct, duly proved, as contemplated by the charter; that the said resolution might be cancelled, and the trustees restrained from in any way interfering with, or impeding the plaintiff in the discharge of the duties of his office, and from withholding his salary in respect thereof; and that such of the defendants, the trustees, as voted for such resolution, and the defendant Leitch, (who was absent from the meeting at which it was passed,) might be ordered to pay plaintiff his costs. I CIIANCBHY REPOKia. IfiOS. Upon tlio filing of tlie bill an application was made (luring the vacation of 18G4, before the late Vice- Clianoellor IJstcn, for an injunction to restrain the trustees, as prayed hy the bill, which, upon argument, he ordered to issue, hia Honor observing, '* I have perused the charter and statutes. I think that the trustees have power to appoint for life, or for a term of years, or during ploasurc ; but that an appointment made generally must bo deemed to be during good behaviour, and while the duties of the office are performed. I think that the 15th clause was obligatory, or was intended to insure an investigation in case of reasonable complaint. By the principles of the common law no man can be dismissed from his office without iiKjuiry, and an opportunity of defending him- self ; I thiiik, therefore, that the dismissal of Mr. Weir was illegal, lie could doubtless recover the emoluments, of his office, but I think ho has a right to the protection of this court, which would not permit another to be maintained in his office while he recovers his salary at law. The logal remedy would be inadequate. I think that a person appointed under the trustees has a right to the protection of the court, and that trustees tran- scending their powers should be restrained by injunction. I disclaim, of course, all authority to interfere, if the trustees, proceeding in due course of law, pronounce a decision Avhich is deemed to be erroneous. In this case the jurisdiction of the visitor would bo invoked, whose decision cannot bo reversed by this court ; but this procecdir.'g appears to rae to be ultra vires." BUtemont Eighteen of the Trustees, as also the College, subse- quently answered the bill, the leading points raised by the answers of the trustees were that the trustees had power to appoint professors, masters, tutors and other officers, for such time as they thought proper; that many professorships in the colleges of the United Kingdom and of Europe, as also of Canada and elsewhere in I * t t t CirANCERY REPORTS. • •• t ^ 'i' . W . America, wero and are not held for life; that tho 1^66. usages of tho Uiiivorait^ ." Eilitihurgh viiricd much ""^-^^^ from tho proviHiotis rchvtintj to Queen's Collptto by ^' tho charter ; that, in points not provided for by the charter, tho usages of that Univernity wero not intended to bo binding on Queen's College ; and that pluintiff wos not appointed for life ; nor did he accept the appointment on condition that it should bo for life. That tho authority of tho Rev. Dr. Cuok, referred to in the bill, was contained in a resolution passed by the trustees on 15th July, 1852, whereby the Rev. Dr. Mathieson and the Rev. Dr. Cook, or wbiohcver of thcra might be in Scotland, wero authorized to seek out und recommend for appointment by tho board, professors to fill the vacancies existing at that tirao in tho college. That after tho plaintiff had been nominated under tho authority of certain resolutions sot out in tho answer, a sutement. resolution was passed on tho 8th of Juno, 1854, statin^ " that the appointment of Professor Weir, be approved of and confirmed from tho period of liis arrival at Kingston ;" that the provisions of the charter rcspectint^ the trial of complaints made to the board do not take away any discretionary power which tho trustees otherwise had, but are only obligatory where such discretionary power exists : and submitted that the board had such discretion to dispense with tho services of the plaintiff as such, in tho same manner as they could remove any oflScer of the college, subject to his receiving any payment on account of salary to wliieh the law under the circumstances might entitle him ; and that the trustees having, in tho exercise of such discretion, dispensed with tho services of the plaintiff, their act or motives could not be questionoc' in this court: denied any improper motive for such removal, asserted that such was done after full discussion by the board on the 9th and 10th days of February, 1864, and from a conviction that the conduct of plaintiff made his removal absolutely 8 CHANCERY REPORTS. 1 ^65. necessary for the beat interests of the college; many of ^^'y^ the facts and circumstances, shewing such necessity to Mathieson ^^^^^^ bciug within the personal knowledge of the trustees. statement. The answers further submitted that the plaintiff had no right to raise any question as to the regularity of the meeting of the board at which he was removed, his removal being, as the defendants contended, discretionary with the board ; also, that Queen's College, being founded by Royal Charter, her Majesty was the visitor thereof, and the plaintiff's only remedy was}by petition to the Crown. The cause having been put at issue, was brought on for the examination of witnesses and hearing before his Lordship the Chancellor, at the sittings of the court, at Kingston, in the autumaof 1864, when evidence was gone into at some length as to the conduct of the plaintiff and the feeling existing on the part of several of the trustees towards him, which it is not necessary to recapitulate. At the hearing a decree was made in favour of the plaintiff, the CJhancellor stating, "My hroi.^r Esten, on the argument of the motion for injunction, has, I find, found the employment of the plaintiff by the defendants was during good behavior, in other words, ad vitum aut eulpam ; and that this court has jurisdiction and ought to interfere to protect hira in the enjoyment of his office. Those are the only two questions of law in. the case, and I think I should hold that they having been disposed of by my learned brother, the plaintiff is entitled to a decree, as it is admitted that if his tenure be such as the Vice-Chancollor decides it to be, he has not been properly removed therefrom, although I doubt the jurisdiction of the court to interfere. '* The evidence before me in no way alters the character of the case as presented to my brother Esten. "The decree •will be to restrain the defendants from ': ^ CHANCERY KEPORTS. interfering with the exercise by the plaintiff of his dutiea or office as classical master ; from appointing any one in his place, and from withholding from him his salary until he is legally removed. " The defendant's must pay the plaintiff his costs." The defendants thereupon set the cause down to be re-heard before the full court. Mr. BlaJce, Q. C, and Mr. Cattanach, for the plaintiff. 1865. In discussing this case the court will have to consider and determine two questions which arise in it : first, the tenure by which the plaintiff held the office to which he has been appointed ; and, secondly, whether the court can properly interfere for the protection of the plaintiff in the event of its being considered that such appointment created a freehold, or quasi freehold, in the Argument. office. 4k It is shewn by the minutes of the board that the Rev. Dr. Leitch, Principal of Queen's College, at the time he was asked lo accept that appointment, held a situation in Scotland, ad vitam aut culpam, and his appointment ia the College not having been for any specified time, the trustees by resolultion expressed the opinion that thr-t appointment was for life : at the time plaintiff was appointed he also held a situation ad vitam aut culpam, and tlierefore the same reasons were applicable to his case as to that of Dr. Leitch. The general rule in Sco'- tish Universities is, that professors hold their chairs for life. In Queen's College; the principal, and all profes- sors, are and must be chosen in the same manner ; and if the trustees are right in their contention as to their power to remove any of the professors, they must have that power as egards the principal also, their status undsr the charter being alike ; a result which could never have been intended. The language of the charter B ^. 10 186- CHANCERY llEPOHTS. here, shews that all the professorships were to be held for life, and provides a means for the removal of any of the incumbents only on complaint being made, and such removal to be by a majority of the trustees; thus clearly negativing the right of arbitrary dismissal, as is contended for by the trustees : in other words, the appointment to office exhausts the power of the trustees, except where complaint is properly made and sustained, when a removal may be made for cause. The express powers given by the charter are narrower than those which the trustees say are implied and are in effect embraced in the implied powers, a result which is absurd. The general rule that such offices are freeholds, or quasi freeholds, is applicable to this case, and deter- mines the tenure when there is no express contract. Argument. ^j^^^ ^^^^ contended that the facts fully established the existence of a trust ; the trustees holding the funds from which plaintiff's salary came, in trust for him, and others in like manner; that plaintiff, as a member of the corporation, was entitled to file a bill, on the ground that the trustees, in dismissing him improperly, had been guilty of a breach of trust ; and also on the ground that the university was a public charity. They also contended, that the trustees appointed by the charter of incorporation were the visitors, and it was not neces- sary therefore to appeal to the Crown ; that the trustees hud agreed to act visitatorially in dismissing the plaintiff, and that haviag exceeded their authority by dismissing him at pleasure, such dismissal was a nuiiity, and that relief should je given in this court. They referred, amongst other authorities, to The King v. Michnrdson, (a) Attorney-General v. Pearson, 'V \ i " (a) 1 Burr. 536. 4.. -'- i " CHANCERY REPORTP. (a) In re PhilUps Charity, {b) In re (e) Dummer v. Chippenliam, {d) P Willis V. Childe, (/) Comyn's L\ Dougars v. Rivaz. (h) 11 nington School, 8 V. Bury, (e) Franchise, {g) 18(55. Weir V. Matbieaon. Mr. Strong,' Q. C, and Mr. McLennan, for defen- dants. The only ground on which plaintiff can at all rest his case, is that this is a charity; the leading case on this point is Phillips v. Bury, referred to by the other side. It is a prevailing principle in all such cases, that there must be a visitor. When no visitor is named, the founder is held to be such; but that rule is applicable only in the case of private charities, not where it is founded by Royal Charter. It is out of the question to contend that the trustees are visitors in this case ; they are the persons appointed to manage the institution — they are in fact the persons to be visited. — Phillips v. Bury, referred to in Duke's Argument. Charitable Uses, -56. The charter being silent as to visitors, the Crown must be held to be entitlet' to all the privileges of visitors. — The King v. Catherine's Hall, {i) The next point is as to the internal management of the college ; in all matters relating to that, the visitor's jurisdiction is conclusive ; Phillips v. Bury is a clear decision on this point. The jurisdiction of the court is clearly stated by Mr. Haddon in his work on the administrative jurisdiction of the Court of Chancery, (pp. 106-7,) and rests it upon the ground of trust. Here there is no trust, and the case of Willis v. Childe, relied on bv the other side, was a case of express trust. (a) 3 Mer. 353, at pp. 295 & 402 (c) 10 Jur. 512. \e^ 2 T. R. 340. {g) F. 32, 34. (t) 4 T. R. 233. (6) 9 Jur. 959. (d) 14 Ves. 245. (/) 13 Beav. 117. (A) 28 Beav. 233. 12 1805. Weir V. MathieaoD, CHANCERY REPORTS. Any contract of hiring, especially for personal service, is not such a contract as this court will specifically perform ; in the present case there is no mutuality between the parties. [Mr. Bhhe, Q. C— We do not rest the case on the ground of specific performance.] The bill is clearly rested on the right to specific performance ; and although that relief is not in terms asked for, still such is the eff'ect of the prayer. This court will not enforce a contract to build a house ; but where money has been left to build, the court will enforce execution of the trust. This it is true may be said to be a very thin distinction, but the reason why the court interferes in the latter case is plain, it is ihat there is no legal remedy for the party entitled. Argument. In this case no such objection exists, as the plaintiff can proceed either by mandamus or by action to enforce payment of the stipulated salary; the frequency of action is not a sufiicient reason for overcoming the objection to the court pronouncing a decree such as is here sought. As to the tenure of office ; the loth section of the charter points out the course to be taken in the case of complaint being made against professors and others; and .he 19th section authorizes the trustees in their discretion to abolish any of the chairs in the college. [Spragge, V. C, that may be so. If, as is contended for by the other side, the professor has a freehold in his office ; that of course can only be while the office con- tinues to exist.] Nothing can be more untenable than the argument attempting to place this on the same footing as the University of Edinburgh ; there it is questionable if a » - , CHANCERY KEPORTS. professor can be removed for any cause. Professor Leitch, it is shewn, before he would consent to accept the appointment, insisted upon it being made during good bchavour; that fact, however, instead of being in favor of the view contended for by the plaintiff, supports the construction put upon the contract by the trustees* 13 1865. Weir ▼. Matbieson.' » ' , The Attorney/ General v. Magdalene College, (a) In Re Berkhampton Free School, (b) The Attorney- General v. Deadham, (c) The Attorney-General v. Clarendon, (d) In R, Queen's College, Cambridge, (e) In Re Oxford College, (/) Pickering v. Ely, (g) Slacken v. Brocklebank, (h) Johnson v. Shreivsbury ^' Birmingham Railway Co., (i) Home v. The London ^ North Western Railway Co., (j) Ogden v. Fossick, {k) Brett v. Fast India ^ London Shipping Co. {I) Peto v. The Brighton cj-e. Railioay Co. (w). were, with other authorities, referred to and commented on by counsel. The other points taken by counsel appear sufficiently in the judgment. The judgment of the court was delivered by Spragge, V. C.*— This case has been exceedingly J'"J8'"«'»t- well argued on both sides. The first point that I propose to consider is the tenure by which Professor Weir held his office. I take that first, because, in my view of the* case, it depends on (a) 10 Beav. 502, (c) 23 Beav. 350, (e) Jacob 1. (a) 2 Y. & C. C. C. 249. (i) 3 D. M. & Q. 914. (ft) 11 W. R. 128. (m) 1 Hem. & M. 4G8, * MowAT, V. C, gave no judgmeat, ha'.j.i leen concerned in the case while at the bar. (6) 2 V. & B. 134. (■ I think no sound distinction exists between professors Judgment. -^^ ^j^jg university, and the masters of public schools. The head of this institution clearly, I think, stands upon the same footing, and I think the charter shews that he and all the professors hold their office by the same tenure ; that they are all, in the language of Lord Cottenham, " public officers." \ . . There are considerations in favnr of such being the tenure of office, urged by Mr. Blake ; some drawn from the provisions of the charter, especially the 15th and 16th clauses, and some resting on other grounds, which are of considerable weight, but into which I do not find it necessary to enter. But, it is contended that the appointment in this case was in effect, though not in terms, dum bene placito ; and that there is nothing in the charter restrictive of such appointment. I do not know that the charter would not prevent an appointment to office of that tenure, even if it had by contract been so expressly -i-. 17 ► \ . 4 1865. CHANCERY REPORTS. limited. What was said by Sir Samuel Romilly leaves room for doubt upon that point ; but here the appoint- ment is general, and must be taken to be of such tenure as would flow from the nature of the oflSce. It is to be remembered, too, that this engagement Avas not made in Canada, where it is said appointments of this nature are understood to be diim bene placito, but in Scotland, where the contrary seems to be understood. I gather this in part from the. evidence, and in part from the case of Gibson v. Ross, which was a Scottish case ; and from the cases in the Scotch courts referred to in that case. I do not attach much weight to the argument deduced from the power possessed by the trustees to reduce the number of chairs in the University. That power seems to me quite consistent with the tenure of office, being during good behavour, as long as the chairs exist ; in other words, an office ad vitam aut culpam, subject to the abrogation of the office itself. Nor can I say that judjment. the implied engagement, involved in the tenure of office claimed by the plaintiff, is unreasonable and improbable ; as the defendants contend, in the face of what I find to have been the practice for many years both in England and Scotland, in regard to offices of a cognate character. The question of jurisdiction was strongly contested at the bar, and, in connection with it, the question as to where the visitatorial power of this university resides. My own opinion is, that whoever be visitor, this court has jurisdiction. The functions of the visitor are in relation to matters of interior economy and manage- ment ; and as to those matters, it may be granted that they are exclusive ; but that is not inconsistent with the jurisdiction of this court in relation to public charities. Several of the cases cited arose in regard to the applica- tion of the revenue. The Attorney-General v. The Foundling Hospital, {a) is an instance of this. In (a) 2 Ves. Jur. 41. 18 OUANCEUY RBPO!lTS. 1 805. Birkhampatead Free School, (n) an order was made by the court, declaring that the warden of All Souls' was visitor M»thic»on. ^^ ^^^° school, but that the revenues were subject to the jurisdiction of the court, which order Lord JEldcn, upon the matter coming before him, pronounced to be " perfectly agreeable to law," and in another passage he says, " the court has, in fact and practice, acted upon the ground of such jurisdiction, of which there is no doubt." In the Attorn ey- General v. Locke {b) the governors of the charity, who were also visitors, were made accountable to the court, quoad the estates of the charity. In most of the cases it is put upon the ground of trust ; the governing body of a public charity hold their powers in trust, and a court of equity, as to matters not falling within the proper functions of the visitor, sees that the trusts are properly carried out ; in some cases, on behalf of individuals, who are aggrieved by the im- proper exercise of the trust; in other cases, on behalf of the Crown, as parens patrice. Green v. Iiutherforth,(c) is an instance of the former. The trust was to present to a rectory. The bill was demurred to on the ground that the jurisdiction was in the visitor, not in the court, but was overruled. The observations of Lord Hardwicke are valuable ; he says, " It is sufficient to shew that the visitor, though general, could not give an adequate remedy in many cases on this trust," and he refers to the case of Eton College, where, as he says, the court held that " the bare averment of a visitor would not preclude the jurisdiction of this court; but the extent of his authority must appear, that the court may be satisfied he can do complete justice; and therefore,'' he says "a mandamus was awarded." Lord Hardwicke' s opinion evidently was that in cases of this nature a court of Judgment. t J ' f (a) 2 V. & B. 134. (c) 3 Atk. 164, (A) 1 Ves. 462. < I • 4 CHANCERY REPORTS. 19 'i equity should cxcrciso its jurisdiction," unless satisfied 18'55. that there was an adequate remedy elsewhere, upon the ^"T^'P^ same principle as a court of common law would grant a jj^thlojon, mandamus. Bex. V. Barker (a) Avas an application for man- damus, directed to the trustees of an endowed dissenting clinpel, to admit a minister duly elected. Lord Mansfeld observed, " Here is a function with emoluments, and no specific legal remedy," and the mandamus A<'as granted. These cases are apposite to the contention by the defendants, that this court lias no jurisdiction, because, as they contend, the Queen is 'visitor. t » ' » Dawson v. Corporation of ChippenJiam, (b) was a bill by the master of a public school for improper dismissal ; a demurrer to the jurisdiction was overruled. Willis v. Childe (c) Avas a similar case, and the bill was sustained. In the Attorney-General v. Sherborn School, the point was again discussed with the same result. In the Attorney -General v. Dedham School, (d) the question was again discussed in connection with the authority of the visitor, Sir Johyi Romilly ooserving that " this court does not interfere with the visitatorial power, unless it finds a breach of trust." Dougars v. Rivaz, (e) before the same learned judge, is a strong case in favor of this bill. The plaintiff was the pastor of a French Protes- tant Church in London, which had been incorporated by Royal Charter by Edward VI., and which was possessed of certain revenues, out of which the salary of the pastor was paid. The elders and deacons, who formed the governing body, deposed the plaintiff from his office, and withheld from him his salary. For the plaintiff, it was insisted that the matter complained of was cognizable by Judgment. (a) 3 Beav. 1265. (c) 13 Beav. 117. {e) 28 Beav. 233. (6) 14 Ves. 245. ((f) 23 Beav. 350. 20 cnANCERY REPORTS. W«lr T. 1805. this court, as it involved tho clue performance of a ~^ trust in respect of the trust funds under tho control of tho defendants, and that this was a matter distinct from the visitatorial power of tho Crown. Tlio defendants objected to tho injunction, contending that the court could only interfere in cases of trust, and that in that institution no trust could bo shewn to exist for the plaintiff. Sir John liomilli/ held that tho court had jurisdiction, and granted relief. His remarks aro apposite to this case. " It appears that tho funds of tho institution aro under the control of the governing body, and tho defendants have practically tho power of with- holding from the plaintiff the emoluments assigned to and accepted by him. This constitutes a trust which they have to perform, and -which they aro bound to perform, in favor jof the person who fills tho office of pastor ; and assuming tho plaintiff to bo wrongfully deposed, I am of opinion tho relation of trustee and jyidgtaent. cestui que ti'ust docs oxist bctwccn the elders and deacons and tho pastor. * * * rj^^^ visitor visits the corporation with respect to corporate matters; but that circumstance docs not remove from this court the jurisdiction or obligation to exercise its functions of inquiring whether the duties attaching to the defendants, so far as they have a trust to perform towards the minister, have been properly exercised by them." The case of Pickering v. Bishop of Ely is distinguish- able from this case ; in that it was not a case of a public charity, nor was there an endowment of any kind, or revenues upon which to fasten a trust. Sir J. L. Knight Bruce, who decided that case, could not have intended to deny the jurisdiction of the court in the case of a public charity, for in the case of the Phillips Charity and the Fremington School, decided not long afterwards, he upheld the jurisdiction. l 'I i Mr. Strong dist'n^aisaesFV^^/a v. OMc?e, and Dou- CHANCERY REPORTS. il I' ]■ ♦ gara v. Rivaz, from iho cnse before us, on the ground that those were cases of trust. I do not aoe that this is less 80. Mr. Strong says, and I agroo with him, that Queen's College is what in law is called a charity ; I think unquestionably a publi • charity; and ho says, what is probably correct, that the Queen is visitor. Now if there are revenues of such an institution, as there must be, or it could not be carried on, those revenues must be administered by the governing b )dy ; and that body must administer them for the purposes declared in the charter, and therefore necessarily in trust, and I apprehend it can make no difference whether those revenues arc derived from endowment or from benefac- tions year by year. However derived, the trust is the same. This case I think" is not distinguishable from those referred to. The trust gives this court jurisdiction, and is outside of the visitatorial power, which, as Mr. Strong contends, affords the only remedy. I may hero notice the objection that this is in effect a bill for specific performance. It is not more so than those of the masters of public schools, which have been referred to ; and does not rest upon that head of juris- diction, but upon trust. There being a trust, it cannot be an objection to relief upon it, that it originated in a contract. The agreement seems to amount to this. There is a contract, but of a nature which this court will not specifically perform, and therefore, although there be a trust proper for this court to execute, the court will decline its ordinary jurisdiction in regard to trusts, and refuse to execute them. I cannot accede to this. 1866. JuilgiB«nt. The next point is as to whether this suit is rightly constituted, supposing the co«rt to have jurisdiction, or whether it should not have been by information, or by information and bill. I think it is rightly constituted as it is. Bummer v. Corporation of Chippenham, Willis v. Childe, and Dougars v. Rivaz, already referred to, were all suits by the individual aggrieved, and in the latter 90 CHANCERY REPORTS. 2^ case ^.hilc it was objectod by the learned counsel ^^,,. tor the defendants, amon^r them Sir Hugh Cairns, Mathieson that the corporation ought to have been made a party defendant, it was not objected that a bill by the plaintiff was not proper. The same suit, with the suit of the Attorne^-Geneml v. Dougars, (a) illustrates in what class ot cases the proceeding is proper by bill, and in what by information. In the former suit the court gave costs aga.nst the defendants, and they paid them out of the funds of the charity ; and the information was filed in part on the ground of that misapplication of the funds, ihus, to correct the individual wrong, consisting of deprivation of office and its emoluments, a bill was sustained ; while, to correct the public wrong of a mis- application of the funds, an information was sustained. I may here observe, that it does not appear to be necessary to shew that the payment of the funds to Judgment, another improperly appointed to the office, will not leave sufficient for the payment of his salary, to the person deprived of office. This does not seem to have been an element in any of the cases. It is sufficient to shew a breach of trust affecting the fund, out of which the party instituting the suit is entitled to be paid. It has been doubted in this case, whether the court can properly go so far as not only to reinstate the plaintiff, but also to direct that his arrears of salary be paid to him. I have not felt pressed with any difficulty on that score. The court finds the act of removal, done as It was done, ultra vires, and therefore a nullity The plaintiff, it follows, has all along been, and still is pro- fessor; he has been improperly debarred from executing Ins duties, and his salary has been improperly withheld from him. Tlie cou.t declares that he still is professor ; and that he has been dismissed and ought to be restored, bu^that ho has been and is professor ; and so in effect {a) 10 Jur. N. S. 966. CHANCERY REPORTS. 23 declares that he is entitled to what appertains to his 1865 office, inter alia, salary. The proper officer would surely be justified, and it would be his duty, to pay him his salary, without express direction in the decree to that effect, and, if so, it cannot be wrong to give such express direction ; moreover, it would not be in accordance with the practice of this court to give such incomplete remedy, as would be given if the court left him to seek payment of his salary by proceedings elsewhere. The presence of the Attorney- General cannot, I apprehend, be necessary for this purpose, as it is only a consequential direction upon that, for the determining of which he is not a necessary party. I had come to this conclusion before observing that in the case of Phillips' charity, the arrears of salary were expressly directed to be paid. It is not to be doubted that it was decreed in other cases also, though the reports do not happen to mention it. I think the decree should direct the payment of the J"'i8°«n«- plaintiff's costs by the defendants, by whose votes his dismissal was effected, and that they ought not to come out of the funds of the institution. I have already referred to the direction in Dougars v. Eivaz, and Attorney- General v. Dougars, upon that point; the reason for this, and it is obvious enough, is given in the latter case: the like direction was made in the case of Phillips^ charity. If is perhaps hardly necessary to say that it has not been a question for the consideration of this court whether just grounds do or do not exist for the removal of the plaintiff from his professorship. He has been removed upon the assumption by tlie trustees that they had the right to remove him in their discretion. If his tenure of office be such as in our opinion it is, he could not be so removed ; that, and his remedy in this court are the questions that it has been our province to decide. 24 CHANCERY REPORTS. 1865. It was conceded in argument, that if th6 plaintiff'* ^— V— ' tenure of office was ad vitam aut culpam, th6 y. " deprivation of office which had taken place in his fiase was not regular, and could not be sustained. H-f V