^ 
 
 .^r^ 
 
 w>. 
 
 lAAAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 1.0 
 
 I.I 
 
 11.25 
 
 I^|2j8 12.5 
 
 US 
 
 u,|^ 
 
 12.2 
 
 Ui 
 
 u 
 
 14.0 
 
 I 
 
 2.0 
 
 U ill.6 
 
 "V 
 
 r>>.> 
 
 
 '-^ 
 
 Hiotographic 
 
 Sciences 
 
 Corporation 
 
 33 WEST MAIN STREET 
 
 WEBSTER, N.Y. 145S0 
 
 (716)873-4503 
 
CIHM/ICMH 
 
 Microfiche 
 
 Series. 
 
 CIHIVI/ICMH 
 Collection de 
 microfiches. 
 
 Canadian institute for Historical Microreproductions / Institut Canadian de microreproductions historiques 
 
Tachnical and Bibliographic Notaa/Notas tachniquas at bibliographiquaa 
 
 Tha Instituta has attamptad to obtain tha bast 
 original copy availabia for filming. Faaturaa of this 
 copy which may ba bibliographically uniqua, 
 which may altar any of tha imagaa in tha 
 raproduction. or which may significantly changa 
 tha usual mathod of filming, ara chackad balow. 
 
 □ Colourad covara/ 
 Couvartura da coulaur 
 
 r~n Covars damagad/ 
 
 D 
 
 D 
 
 D 
 D 
 
 D 
 
 D 
 
 Vl ■, 
 
 Couvartura andommagia 
 
 Covars rastorad and/or laminatad/ 
 Couvartura raataurAa at/ou palliculte 
 
 □ Covar titia missing/ 
 La 
 
 titra dr couvartura manqua 
 
 nn Colourad maps/ 
 
 Cartas gtegraphiquas 9n coulaur 
 
 Colourad ink (i.a. othar than blua or black)/ 
 Encra da coulaur (i.a. autra qua blaua ou noira) 
 
 I I Colourad platas and/or illustrations/ 
 
 Planchas at/ou illuatrationa ^n coulaur 
 
 Bound with othar matarial/ 
 Ralii avac d'autras documants 
 
 Tight binding may causa shadows or distortion 
 along intarior margin/ 
 
 La tB liura sarria paut causar da I'ombra ou da la 
 distorsion l« long da la marga intiriouro 
 
 Blank laavas addad during rastoration may 
 appaar within tha taxt. Whanavar possibia, thaaa 
 hava baan omittad from filming/ 
 II sa paut qua cartainaa pagaa blanchas ajoutiaa 
 lors d'una rastauration apparaissant dana la taxta. 
 mala, lorsqua cala Atait possibia, cas pagas n'ont 
 paa 6x^ filmias. 
 
 Additional commants:/ 
 Commantairas supplimantairas; 
 
 Th 
 to 
 
 L'Institut a microfilm* la maillaur axamplaira 
 qu'il lui a itt possibia da sa procurar. Las details 
 da cat axamplaira qui sont paut-itra uniquas du 
 point da vua bibliographiqua. qui pauvant modifier 
 una imaga raproduita. ou qui pauvant axigar una 
 modification dans la mithoda normala da filmaga 
 sont indiqute ci-dassous. 
 
 I I Colourad pagas/ 
 
 D 
 
 Pagaa da coulaur 
 
 Pagas damagad/ 
 Pagas andommagias 
 
 Pagas rastorad and/oi 
 
 Pagas raataur^as at/ou palllcultes 
 
 Pagas discolourad. stainad or foxai 
 Pagas dicolorias, tachatias ou piquies 
 
 Pagas datachad/ 
 Pagas dAtachias 
 
 Showthrough/ 
 Transparanca 
 
 Quality of prir 
 
 Quality inAgala da I'imprassion 
 
 Includas supplamantary matarii 
 Comprand du material suppiimantaira 
 
 Only adition availabia/ 
 Saula Mition disponibia 
 
 |~n Pagas damagad/ 
 
 [~n Pagas rastorad and/or laminatad/ 
 
 r~7| Pagas discolourad. stainad or foxad/ 
 
 I I Pagas datachad/ 
 
 rn Showthrough/ 
 
 I I Quality of print varias/ 
 
 I I Includas supplamantary matarial/ 
 
 I — I Only adition availabia/ 
 
 Pagas wholly or partially obscurad by errata 
 slips, tissues, etc.. hava been refilmed to 
 ensure the best possible image/ 
 Les pagas totalement ou partiellement 
 obscurcies par un fauillet d'errata. una pelure, 
 etc.. ont M fiim^s k nouveau da fapon & 
 obtanir la meilleure imaga possible. 
 
 Th 
 po 
 of 
 fill 
 
 Or 
 ba 
 thi 
 sic 
 oti 
 fir 
 sit 
 or 
 
 Th 
 sh 
 
 Ml 
 dil 
 
 an| 
 ba 
 rig 
 rai 
 m« 
 
 This item is filmed at the reduction ratio chackad below/ 
 
 Ca document est film* au taux da rMuction indiquA ci-dassous. 
 
 10X 
 
 14X 
 
 18X 
 
 22X 
 
 26X 
 
 30X 
 
 
 
 
 
 
 
 
 
 
 
 • 
 
 
 
 
 
 
 
 
 
 
 
 
 12X 
 
 16X 
 
 20X 
 
 24X 
 
 28X 
 
 32X 
 
^ - Th« copy filmed li«r« hat bMn r«produo«d thanks 
 to tha ganaroaity of: 
 
 L'exemplaire film4 f ut reproduit grAce i la 
 > g4n«ro8it« da: 
 
 Douglaa Library 
 Quaan'a University 
 
 Douglas Library 
 1 Queen's University * \ 
 
 Tha imagas appearing here are the heat quality 
 posaibis considering the condition and legibility 
 of the original copy and in Iceeping with the 
 filming contract specifications. 
 
 Les imagea auhrantes ont AtA reprodultes avac la 
 plus grand soin, compta tenu de la condition at 
 da la nattet* de I'exempleire film*, et en 
 conformity evec les conditions du contrat de 
 fllmage. 
 
 Original copies in printed paper covera are filmed 
 beginning with the front cover end ending on 
 the laat page with a printed or liluatrated Impres- 
 sion, or the iMck cover when appropriate. All 
 other original copies are filmed beginning on the 
 first page with a printed or liluatrated imprea- 
 sion, and ending on the last page with a printed 
 or illustrated Impreasion. 
 
 Lea axemplairaa origlnaux dont la couverture en 
 pepier est ImprimAe sent filmte en commen^ent 
 per le premier plat et en terminent solt par la 
 darnlAre page qui comporte une empreinte 
 d'impreaaion ou d'iliustration, solt par le second 
 plat, aaion le caa. Tous les autres exemplaires 
 origlnaux aont f llmte en commenpant par la 
 pramlAre page qui comporte une empreinte 
 d'Impresslon ou d'iliustration et en terminent par 
 la dernlAre pege qui comporte une telle 
 empreinte. 
 
 The last recorded frame on each microfiche 
 shall contain the symbol ^»> (meaning "CON- 
 TINUED"), or the symbol V (meaning "END"), 
 whichever applies. 
 
 Un des symboies suivants apparattre sur la 
 darnlAre imege de cheque microfiche, selon le 
 caa: le symbols — ► signifie "A SUIVRE", le 
 symbols V signifie "FIN". 
 
 ■Maps, plates, charts, etc., may be filmed at 
 different reduction ratios. Those too ierge to be 
 entirely included in one exposure are filmed 
 
 Les cartas, planches, tebieaux, etc., peuvent Atre 
 fllmte it des teux de rMuction diff Arents. 
 Lorsque le document est trop grend pour Atre 
 
 begiiTfiiirng in the upper left hand corner, left to 
 right and top to bottom, as many frames es 
 required. The following diagrams illustrate the 
 method: 
 
 reproduit en un seul ciichA, II est film* A partir 
 de i'angie supArieur gauche, de geuche A droite, 
 et de haut en baa, en prenent le nombre 
 d'Images nAcessalre. Les diagrammes suivants 
 illustrent la mAthode. 
 
 1 
 
 2 
 
 3 
 
 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
L 
 
 •■; I ■ 
 
 .0 
 
 M, I 
 
 dWiy '^^^ 
 
 ■I , ■' < : • 
 
 .1 ■ ' 
 
 f.:-o(ii; 
 
 ■HI- 
 
 m ERROR AND APPEAL ;, 
 
 , Mathieson v. Weir. 
 
 JUDGMENT. , 
 
 The Judgment of the Court was delivered by 
 
 Hagabty, J. — I propose, first, to consider the question of 
 jurisdiction. 
 
 The charter authorises the Trustees to appoint a Principal 
 and such Professors, Masters and Tutors, and such other officers, 
 as to them shall seem meet. (Sec. 12.) 
 
 As soon as there should be a Principal and one Professor, 
 the Trustees have authority to constitute the "College Senate" 
 for the exercise of academic discipline, &c., and all the Profes- 
 sors should be members thereof. (Sec. 29.) 
 
 The Trustees have power to make statutes and rules, to 
 regulate the number, residence and duties of the Professors, 
 and their salaries, ctipends and emoluments, and the same to 
 revoke, vary and alter. Whenever there should be a Principal 
 and four Professors, the Senate should have power to confer 
 Degrees in Arts and Faculties. (Sec. 19.) 
 
 The charter was granted in 1842, and in 1853 the then first 
 Principal, Dr. Cook, was directed by the Trustees to proceed 
 to Scotland and engage Professors for the College ; and the 
 Plaintiff was offered and accepted the professorship of classical 
 literature at a salary of £350 a year. 
 
 The endowment of the College consisted of gifts and sub- 
 scriptions. No fund or property appears to have been provided 
 from any public source. The drown did nothing beyond grant- 
 ing the cnarter. Annual collections are made for bursaries, 
 and moneys and property, by gift and bequest, have been 
 obtained from inaividuals. The Provincial Legislature has 
 usually made an annual grant to this College with several 
 others. No particular fund is set apart or exists for the sup- 
 port of this chair of classical literature. The stipend seems to 
 be paid from the general funds of the College. 
 
 b()288 
 
2 
 
 It seems conceded that to gronnd the jnrisdiction of the 
 court there must be the position of trustees and oesH qtte tritst 
 between the defendants and the plaintiff — that there must be 
 a tncst in the sense in which that word is imderstood, in Courts 
 of Equity, to warrant its interference. 
 
 The charter does not create the office held by plaintiff; his 
 office is not of the essence of the corporation. The creation of 
 a chair of classical literature was wholly the act of the trustees 
 under their chartered powers ; they were not bound to create 
 it, and it was conceded in argument that they have the power 
 to suppress it altogether. The corporation existed prior to its 
 creation, and can exist alter its suppression, exercising all its 
 University functions. From the vast mass of cases, oearing 
 more or less on the question, two or three may be selected. 
 
 Whiston V. The Dean and Chapter of Rochester (7 Hare 
 632), decided bv Sir James Wigram in 1849, appears not to 
 have been citea in the court below. The charter of Henry 
 Yin. establishing the cathedral church provided that there 
 should be always a "Preceptor pnerorum in grammatica." A 
 stated salary was assigned to him from the church fiinds. 
 
 The plaintiff was appointed master of the Grammar School 
 in 1842 at a fixed salary, and in consequence of certain dif- 
 ferences with the Dean and Chapter, was dismissed by them. 
 He filed his bill to restrain them from removing him or appoint- 
 ing a successor, and after a very able argument by Sir J. 
 Romilly for plaintiff, and Roundell Palmer for defendants, Sir 
 James Wigram refused with costs a motion for injunction. He 
 says : — " I never entertained a doubt that if it could be estab- 
 lished that the Dean and Chapter were trustees for the master 
 of the Grammar School, he would be entitled to the assistance 
 of the court in enforcing the execution of the trust. If the 
 appointment of plaintiff as schoolmaster gave him a right to 
 this stipend prescribed by the statutes as a eesU qvs trust as 
 against his trustees, there is no question whatever that the 
 mere circumstances of defendants being a corporation or an 
 ecclesiastical body would not remove the case from tlie juris- 
 diction of the court." 
 
 After an adjournment to look into authorities, the learned 
 Judge says : — *' The answer that I feel compelled to give, after 
 examining, I believe, every case that was cited in argument 
 bearing upon it, is, that this is not a case of trust in the sense 
 above explained (referring to certain cases). The master, upon 
 tile true construction of the statutes, ought to be considered 
 only as an officer of the cathedral churSi appointed for the 
 
ion of the 
 'i que trust 
 re must be 
 I, in Courts 
 
 lintiff; hia 
 creation of 
 he trustees 
 1 to create 
 the power 
 jrior to its 
 Jinc all its 
 8, Dearing 
 lected. 
 r (7 Hare 
 ars not to 
 
 of Henry 
 ihat there 
 ktica." A 
 mds. 
 
 lar School 
 jrtain dif- 
 
 by them. 
 r appoint- 
 by Sir J. 
 dants, Sir 
 tion. He 
 
 be estab- 
 be master 
 assistance 
 t. If the 
 i right to 
 i trust as 
 
 that the 
 ion or an 
 tJie juris- 
 
 3 learned 
 ive, after 
 irgument 
 the sense 
 ter, upon 
 msidered 
 I for the 
 
 ft 
 
 Eurpose of performing one of the duties imposed on the church 
 y the statutes of l^e founder. I cannot, m this case, for the 
 purposes of the question I have to determine, distinguish the 
 position of the master from that of the master in Attorney- 
 General v. Magdalen College (10 Beaven 402), or from other 
 cases in the books in which similar questions have arisen 
 between collegiate bodies and persons holding offices 
 I appointed by the founder, but which persons have not been 
 members of the collegiate body. I cannot, upon the construc- 
 tion of the statutes in this case, say that the master is not one 
 of the ' ministri ' spoken of. But if the contrary of this could 
 be maintained, I cannot discover a ground for holding that the 
 master is a ceaU que incat of the cathedral church only 
 because he received a stipend, payable out of the common 
 funds of the defendants, which would not equally oblige me 
 to hold that every officer, to whom a living and a stipend are 
 given, is also a cesU que trust. The case of the Attorney 
 General v. The Magdalen College is a direct authority in point, 
 and I am satisfied with following that authority. * * * 
 The only question I have to determine is whether the Court of 
 Chancery, in the exercise of its ordinary jurisdiction by bill in 
 a case in which no trust exists, can try the right to the office of 
 schoolmaster, from which the defendants have exercised the 
 power of excluding him. I am of opinion this question must 
 I be answered in the negative. Excl iing trust, I cannot find 
 a single authority which supports the proposition." 
 
 The plaintiff afterwards applied to the Queen's Bench, but 
 \ failed there because he had not appealed to the visitor named 
 I by the founder. 
 
 Sir James Wigram did not make this any ground of objec- 
 i tion. He said : — " Supposing the Bishop to be the Visitor, and 
 i that he has not interfered, I <E) not know why the court should 
 not, in a plain case, declare the right, of the Plaintiff." 
 I The Attorney General v. Magdalen College was before Lord 
 [Longdale, M.K. The statutes provided for the perpetual 
 ^ maintenance of a schoolmastex, with a named stipend, " out of 
 the common goods of our college." 
 
 The Master of the Rolls says : — " H on the true construction 
 of the statutes, the schoolmaster and usher ought to be con- 
 sidered only as officers appointed, and to be appointed, by the 
 College, for the purpose of performing the duty of the college, 
 in giving instruction to such persons as might attend them, and 
 the duty of appovnimg them, ts not othenoise minexed to the mere 
 properti/ of the cdUege than by the obligation to pay certain 
 
annual sumB of money, and ie not of the nature of a trust, the 
 execution of which it is within the iuriediction of this court to 
 enforce, but the observance of whicn, according to the statutes 
 of the founder, is to be reflated and enforced, and adequately 
 
 Srovided for by tlie authority of the Visitor, tlien this breach of 
 uty, whatever it may be, ought to l)e redressed by the Visitor, 
 and not here. ♦ * * * The Oolhjge has, no doubt, a very 
 important duty to perform with reference to tlie school, and 
 the performance or that duty may be enforced by proper 
 authority ; but, unless it be a duty founded on a trust whicli 
 this court can execute, the performance of this duty is not to be 
 enforced here. * * * The revenues of the College belong to the 
 College for its own use, subject, indeed, to the pertbrniance of 
 all duties incumbent on the College to perform, but not subject 
 to any trust to be executed in this court. ^ * * Though 
 there is sufficient proof of the duty and obligations, tliere is not, 
 in my opinion, evidence of a trust, as the word trust is under- 
 stood in this court." 
 
 The Vice-Chancellor speaks of the Plaintiff, in this case, 
 as " not being a member of the collegiate body." I do not at 
 present see that it would'- have affected his decision had the 
 master of the school been, by the statutes, a member of the 
 Chapter. 
 
 In the case before us t)ie Plaintiff is certainly a member of 
 the body corporate. The charter is curiously comprehensive : 
 it declares that certain ministers and laymen named, " and all 
 and every other such person or persons as now is, or are, or shall, 
 or may at any time hereafter be ministers of the Presbyterian 
 Churcn of Canada, in connection with the Church of Scotland, 
 Of members of the said Presbyterian Church, in such connec- 
 tion, and in full communion with the said Presbyterian Church, 
 i^all be and be called one body corporate and politic," <&;c., &c. 
 The Plaintiff is certainly one of the body corporate ; he is also 
 a member of the College Senate ; but he is outside the govern- 
 ing body of Trustees, to whom the management of the property 
 and revenues are alone ^trusted* 
 
 All the cases cited seem distinguishable. 
 
 In Dummer v. Corporation of Chippenham, the defendants 
 held rent char^ for the support of a free school, and brought 
 ejectment against plaintiff, tlie Master, they having dismissed 
 him, as he said, corruptly, on political grounds, and not on the 
 grounds assigned by them. He asked discovery from the cor- 
 porators named Individually, and a demurrer to his bill was 
 QYerruied, Lord M49U #ay6 > — " Ref^endants are entrusted, i» 
 
 [their ^ 
 perty, 
 maater^ 
 corpori 
 misBins 
 indivia 
 table p 
 thatpo 
 not CO] 
 which 
 Will 
 the Lu 
 holdbj 
 aschen 
 decree 
 The cj 
 before 
 theRo 
 that a I 
 to reg 
 I besidee 
 {rente a 
 \ dismiss 
 lease nc 
 dismise 
 IdismisE 
 Intl 
 I a dwel 
 I permit 
 [office, 
 [other I 
 I Chanc 
 appoii 
 Ihold 
 equita 
 isay th 
 I assi 
 I them 
 they ^ 
 iudicii 
 ^ In1 
 WAS e 
 under 
 thec< 
 
a trust, the 
 ;hi8 court to 
 the statutes 
 
 adequately 
 is breach of 
 the Visitor, 
 aubt, a very 
 school, and 
 
 by proper 
 trust which 
 is not to be 
 plong to the 
 brniance of 
 not subject 
 * Though 
 iiere is not, 
 Bt is under- 
 
 this case, 
 I do not at 
 »n had the 
 ber of the 
 
 nember of 
 rehensive : 
 ," and all 
 e, or shall, 
 Bsbyterian 
 
 Scotland, 
 ih connec- 
 ■n Church, 
 " <fec., &c. 
 
 he Is also 
 le govern- 
 i property 
 
 <'f-rf^.-»<-, .1,' 
 
 efendwts 
 d brought 
 dismissed 
 lot on the 
 a the cor- 
 bill was 
 rusted, in 
 
 ^ 
 
 their corporate capacity, with the management of certain pro- 
 perty, clothed with a iruat for the maintenance of a gchool- 
 mastery and for this purpose I represent the case thus, that the 
 corporation have tlie power of nominating the master, and dis- 
 missing him at their will and pleasure. A corporation, as an 
 individual, with such a power over an estate devoted to chari- 
 table purposes, would, m this court, be compelled to exercise 
 that power — not according to the discretion of this court — but 
 not corruptly. * * * My opinion is that this is a case in 
 which the court will call upon individuals to answer." 
 
 Willis V. Child (13 Beav., 117), also relied on, was the case of 
 the Ludlow School. A school-house was appropriated to &nd 
 held by the plaintiff, and all had been settled years before under 
 a scheme for the govemihent of the charity settled by a previous 
 decree of the Court of Chancery, reported in 3 M. and C. R. 
 The case of Phillips' charity, ex parte Newman (9 Jur. 962), 
 before Knight Bruce, Vice-Chancellor, was a petition under 
 the Komilly Act by the schoolmaster and others. It appeared 
 that a scheme had been settled some years before by the court 
 to regulate the Sutton Free School, and the scnoolmaster, 
 besides a fixed stipend, had, after deductions, one hal^ of certain 
 rents andjyroJUs. After holding the office some time he was 
 dismissed, and reinstated by an order of the court in 1839, in a 
 case not apparently reported. After some years he was again 
 dismissed, and again petitioned, and was again reinstated, the 
 dismissal being irregular. 
 
 In the Fremington School case, ex parte Ward (10 Jur. 612), 
 a dwelling and school-house had been devised tc trustees to 
 permit and suffer the schoolmaster to occupy wlJU'. holding the 
 office, and take the issues and profits, and also cer ain rents of 
 other premises were to be paid to the schoolmaster. The Vice- 
 Chancellor held that the master had "acquired, upon his 
 appointment, a freehold, or an interest in the nature of a free- 
 hold and the revenues belonging to it, whether legal or 
 equitable it is not necessary to inquire. Of course I do not 
 say that he became an irremovable master. On the contrary, 
 I assume the competency of the electors or a majority of 
 them to remove him for a ji:st cause. This power, however, 
 they were, as I conceive, bound to exercise not otherwise than 
 judicially." 
 
 In the Berkhampstead case also (2 V. and B.), the master 
 WAS entitled to two-thirds of certain funds arising from rents 
 under a previous scheme for the charity arranged dv decree of 
 the court Lord Eldon said, '' If, in the ongmal instrument, 
 
a trast is expreised ae to the application of reyehne, this court 
 has jurisdiction to compel a due application." 
 
 So in the Chipping Sodbury case, before Lord Lyndhurst, the 
 master had a schooi-houBO and residence, and certain moneys 
 had been contributed to provide a residence, and it was sougnt 
 ^ to ^ct him therefrom. 
 
 Where services are wholly in the nature of personal service, 
 the court will not interfere to restrain the removal of an oflBcer. 
 The last case on this subject is Muir v. Himalaya Tea Com- 
 pany. (13 L.T. & 8., 689.) Wood, Viee-Chancellor, says : — 
 " Assuming the construction of the deed most favorable to 
 plaintiff, that he was an irremovable agent on the terms of his 
 taking the shares, still what could the court do ? It could not 
 act on the contract in equity in favor of the plaintiff, as the 
 duties of an agent were in the nature of personal service, and, 
 as such, incapaole of being enforced in equity ; and so the court 
 could not enforce the fulfilment of the agreement on the agent." 
 
 Tlie strongest case in favor of plaintin is that of Daugars v. 
 Rivaz, deciaed in 1860 by Sir John Bomilly, Master of the 
 Rolls (who argued unsuccessfully for the plaintiff in Whiston's 
 case, 7 Hare). (181 Beav.^ Daugars was Pastor of the French 
 Protestant Cnurch in London, and being dismissed by defendant, 
 the elders and deacons sought to be restored. King Edward VI. 
 had incorporated a church for foreign Protestants, the corpora- 
 tion being a superintendent and four ministers. After some 
 years the Germans and French separated into different congre- 
 
 gations. The charter did not provide for the government and 
 istribution of the funds. The French Church had two minis- 
 ters, and was governed by a consistory of the two ministers 
 and the elders and deacons. 
 
 The Master of the Bolls says : — " On examining the rules it 
 appears that two funds have been created and now exist — one 
 dedicated for the support of the poor, and the other for the 
 maintenance of the mmistry and other church matters. * * 
 Wholly apart from the charter of incorporations, a fund exists 
 for the support of the ministry of the church. * * * It 
 appears that the funds of the institution are under the control 
 of the governing body, and the defendants have practically the 
 power of withholding from plaintiff the emoluments assigned 
 to and accepted by him. This constitutes a trust which they 
 have to perform, and which they are bound to perform in 
 favor of theperson who fills the office of pastor. And assuming 
 the plaintiflt to be wrongly deposed, I am of opinion the rela- 
 tions of trustee and ceati que trust does en&i between the 
 elders and deacons and the pastor." 
 
10, this court 
 
 ndhnrgt, tho 
 tain monevB 
 k was sought 
 
 )nal service, 
 jf an oflScer. 
 I Tea Oom- 
 lor, says : — 
 avorable to 
 lerms of his 
 ft could not 
 ritiff, as the 
 ervice, and, 
 so the court 
 the agent." 
 Daugars v. 
 ster of the 
 1 Whiston's 
 the French 
 ' defendant, 
 Edward VI. 
 he corpora- 
 A-fter some 
 ent congre- 
 'nraent and 
 two minis- 
 ) ministers 
 
 the rules it 
 exist — one 
 ler for the 
 ers. * * 
 und exists 
 
 * * It 
 he control 
 iticallythe 
 s assigned 
 ^hich they 
 srform in 
 assuming 
 
 the rela- 
 ween the 
 
 It is to bo noted that the corporate body under King 
 lEdward's charter is not a party to the bill. The Master of the 
 IBolls hold this to be unnecessary, and indeed the case seema 
 ito be wholly treated as between individuals. The plaintiff, as 
 [pastor or minister, was one of the consistory of mmisters and 
 [elders and deacons. His office may be said to be of the 
 lessence of the association, and the existence of the fund for the 
 fministry and the other purposes seems to be the ground of the 
 lassumption of the relation of trustee and oeati que trust. . 
 
 The strong impression left on my mind is that in all the 
 
 cases in whicii a Oourt of Equity has interfered to restore an 
 
 [ejected officer, it has been on the ground that there was 
 
 [a right of some specific kind to moneys or lands appropriated 
 
 to the office, as in the case of a schoolmaster to wnom a 
 
 [revenue derived from a specific source, or a house or rent 
 
 [charge, i&c., was directly appropriated, and this, as distin- 
 
 [guished from a mere claim, to be paid a stipend or allowance 
 
 taken from some general fund. In other words, when the 
 
 [applicant can point to any specific moneys, or any rents or 
 
 land, and say that mone^, rent or house war expressly set 
 
 apart for me as holding this office, and was held by others for 
 
 the holder of the office, then the court finds the trust established, 
 
 and assumes iurisdiction to prevent a wrongful disturbance of 
 
 the officer. But when nothing but the right to receive a fixed 
 
 stipend out of a common fund of an institution applied to 
 
 [many various purposes^ and especially for the performance of a 
 
 'duty not essential to the existence of the institution, there is 
 
 nothing on which the court can properly fasten a trust. I 
 
 therefore think the plaintiff fails on this branch of the case. 
 
 Mr. Lewis (page 365, 4 Edt., 1861) points out the distinction 
 thus : — " With the visitorial power the Court of Chancery has 
 I nothing to do, (the office of Visitor bein^ to hear and determine 
 I all difi^rences of the members of the society among themselves, 
 I and generally to superintend the internal government of the 
 [body, and to see that all rules and orders of the corporation are 
 observed.) It is only as respects the administration of the cor- 
 porate property that Equity assumes to itself any right of 
 i interference." 
 
 There is, of course, a marked distinction between the mere 
 dismissal of one salaried officer and the appointment of another 
 to succeed him, and a misappropriation of the trust funds. The 
 latter case would, I presume, be always open to the jurisdic- 
 tion of the court, and any person interested could invoke its 
 aid. But it seems an abuse of terms to call the plaintiff's dis- 
 
miisal in this cMe an improper dealing with or perversion of 
 the trust estate. lie, in my opinion, tu ground the jurisdiction, 
 must show that, as regards some portion of the fund, he is oesH 
 que intat^ and tlie detendantt trustees tor liim. 
 
 If there were a Visitor named under the charter, it would 
 seem that it would he his province to arrange such a^ difiiculty 
 as has occurred in this case, following, as it seems, within the 
 definition given above of the visitorial power. 
 
 The jurisdiction and duty of the court, whore there is a mis- 
 appropriation of trust fUnds, is explained by the Master of 
 Kolls in the well-known case. Attorney General v. 8t. Gross 
 Hospital. (17 Beav., 266.) There the funds had been actually 
 perverted from their proper purpose. He says: — "Where there 
 IS a clear and distinct trust, this court administers and enforces 
 it as much where there is a Visitor as where there is none. 
 This is clear both in principle and authority. The Visitor 
 has a common low office, ana common low duties to perform, 
 and does not superintend the performance of the trust which 
 belongs to the various officers, which he may take care to see 
 are properly kept up and appointed.'^ y* ii>a 
 
 !No Visitor is named here, and the further difficulty anses 
 from the fact that the Grown gave no endowment, although 
 creating the corporation for the public purposes of a University. 
 
 In the ordinary case of a royal founaation, the Grown would 
 be the Visitor, and would, through the Lord Ghancellor sitting 
 in camera, act as such, as Lord Eldon did in 1821, sitting for 
 the King m the case of Queen's GoUe^ (Jacobs 1), directing 
 what persons were duly elected as Principal and Fellows. Lord 
 Hardwicke, in Green v. Rutherford (a case frequently quoted), 
 says : — " The original of all such powers is the property of 
 donor, and the power every one has to dispose, direct and 
 regulate his own property, like the case of patronage. If the 
 charity is not vested m the persons who are to partake, but in 
 trustees, for their benefit, no Visitor can arise bv implication ; 
 but the trustees have that power." And it was held that there 
 being a subsequent gift of property, under particular trust, b^ a 
 third person not the founder, the Visitor nad not jurisdiction 
 to interfere as to it. 
 
 Again, in Attorney General v. Dedham School (23 Beaven, 
 256), the Master of tne Kolls takes a similar view. 
 
 Sir James Wigram s^s, in Whiston's case, " where there is 
 no Visitor the Gourt of Queen's Bench may be the proper court 
 to redress the wrong." 
 
 On Uiid branch <^ the case, I am of opinicm that, if the 
 
 allege( 
 could 
 not n( 
 proson 
 OH this 
 \ rainou 
 ' precec 
 of El; 
 a juni 
 been 
 tions 
 such 
 court, 
 port 1 
 Unl 
 were i 
 1 refuse 
 ^- the pi 
 \ dama( 
 such I 
 betwe 
 irrepa 
 the fa 
 Tli( 
 and£ 
 heldt 
 Elyb; 
 with I 
 and f< 
 draw] 
 Bishc 
 The^ 
 righti 
 claim 
 nor 
 Bishc 
 plain 
 of la 
 the] 
 such 
 muti 
 com] 
 HeB 
 T] 
 
f 
 
 Perversion of 
 jnriBdiction. 
 U, lie 18 oesh 
 
 »r, it would 
 
 a difficulty 
 
 » within the 
 
 »re is a mis. 
 Master of 
 V. 8t. Cross 
 sen actually 
 (There there 
 nd enforces 
 re is none, 
 'he Visitor 
 to perform, 
 ;m8t which 
 Bare to see 
 
 ulty arises 
 although 
 niversity. 
 wn would 
 (llor sitting 
 sitting for 
 I, directing 
 lows. Lord 
 ly quoted), 
 roperty of 
 iirect and 
 je. If the 
 ike, but in 
 iplication ; 
 that there 
 trust, by a 
 irisdiction 
 
 3 Beaven, 
 
 re there is 
 oper court 
 
 at) if the 
 
 alleged broach of trust wore such as on the authority of the cases 
 could bo cognizal)lo in oqr*'"" ''^ '"* '" "^ "* ^^ 
 
 not ncceBsarily be a bar. 
 
 present, in which a professor in a college, under such a cL 
 as this, has sought for reinstation. I see nothing in the 
 
 could bo cognizal)lo in equity, the existence of a Visitor would 
 
 "jar. I have met with no case like the 
 
 under such a charter 
 volu- 
 minous Btfttemeiit of facts laid before us to induce us to make a 
 precedent, if there bo none. As Buller, J., says, in Rex v. Bishop 
 of Ely (2 T. R. 887) : — " I have never been inclined to assume 
 a jurisdiction on any subject which I have not found to have 
 been proviously exercisea by the court, particularly in ques- 
 tions between members of the colleges of tlio universities. In 
 sucli cases my inclination is against the jurisdiction of the 
 court, unless I am compelled oy legal authorities to sup- 
 port it." 
 
 Unless the right of plaintiff to the intervention of the court 
 were most clearly shown, I think if the court have discretion to 
 refuse interference, that this is preeminently a case in which 
 the plaintiff should have been letl to seek a compensation in 
 damages, if wrongfully dismissed. It is of vital importance to 
 such an institution that confidence and harmony should exist 
 between the trustees and the professors. That an apparently 
 irreparable breach has widened between them is apparent on 
 the facts before us. 
 
 Tlie remarks of Knight Bruce, Vice-Chancellor. in Pickering 
 and Bishop of Ely g Y. & C.0.0. 249), are in point. Plaintiff 
 held the ancient office of Receiver-General of the Diocese of 
 Ely by grant from the Bishop, binding un his successors for life, 
 with an annuity of £10 from the revenues, with diet for himself 
 and forage for horses. A large portion of his fees were from 
 drawing diocesan leases, &c. He filed his bill to restrain the 
 Bishop from taking away from him this conveyancing business. 
 The V ice-Chancellor says : — " Being of opinion thattne alleged 
 rights of the plaintiff, in the breadth and length in which ho 
 claims to be protected in them, are of a nature neither usual 
 nor convenient, nor without hardship or pressure upon the 
 Bishop, I consider it more fit for a Court of Equity to leave the 
 plaintiff to obtain redress by damages or otherwise, in a court 
 of law, than to exercise its peculiar jurisdiction by compelling 
 the Bishop specifically to submit to the practical exercise of 
 such rights, if rights they be." He then notices the want of 
 mutuality, and uiat if the Bishop sued plaintiff in equity to 
 compel a performance of his duties, he would be refusea relief. 
 He says on that and the otlier grounds he dismisses the bill. 
 
 The same Judge comments approvingly on this case, in a 
 
10 
 
 case some years later, of Johnston v. Shrewsbury Railway Co. 
 (3 D. G. M. & G. 927). 
 
 A large number of the cases cited have been decided under 
 stat. 52 Geo. III. ch. 101 (called Sir S. Romilly's Act), passed 
 in 1812, the proceedings being avowedly under that- statute. 
 
 It enacts, that " in every case of a breach of any trust, or 
 supposed breach of any trust, created for charitable purposes, 
 or whenever the direction or order of a court of equity shall 
 be deemed necessary for the administration of any trust for 
 charitable purposes, it shall be lawful for any two or more per- 
 sons to present a petition to the Lord Chancellor, &c., stating 
 such complaint, and praying such relief as the nature of the 
 case may require," &c. Such petition has to be verified in a 
 particular manner, and shall be first allowed by the Attorney 
 General. An appeal is allowed to the House of Lords. 
 
 The Berkhampstead case, the Fremington School case, and 
 Phillip's Charity, &c., '"«re all expressly under this act. The 
 Ludlow case (Willis v. Childe) was under a special act, 9 and 
 10 Yic. ch. 18. Grammar schools are regulated by 3 and 4 
 Vic. ch. 77. 
 
 This act may be regarded as affecting procedure, rather than 
 jurisdiction, as we find cases in which the court decline dis- 
 posing of large questions on petition under the act, but direct 
 Parties to proceed by information (16 Sim. 262, Tudor's Char, 
 •rusts, 148, 176.) 
 
 It would not be right perhaps for this court to dismiss the 
 plaintiflfs bill for want of equity, without expressing an opinion 
 on the nature of his appointment, and the right to dismiss him 
 on the part of the trustees. 
 
 The late learned Vice-Chancellor Esten, in his short judg* 
 ment on granting the interim injunction, considered that the 
 plaintiff held his appointment during good behaviour, while 
 the duties of his office were performed ; that his legal remedy 
 was inadequate, and that he was entitled to the protection of 
 the court. 
 
 After the evidence was taken before the learned Chancellor 
 at Kingston, he appears to have held that as the legal question 
 had been determined by the Vice-Chancellor, he thinks he 
 should hold the plaintiff entitled to a decree, although he 
 doubted the jurisdiction of the court to interfere. 
 
 On the re-nearing, the only reported judgment is that of my 
 brother Spragge, who reviewed the authorities, and decided in 
 favour of the existence of the jurisdiction, and for the full relief 
 of the plaintiff, but without express reference to the question 
 whether the case was such as called for its exercise. 
 
11 
 
 As to the tennre of office, the charter gives no express 
 lirections on this point, and Yice-Chancellor Esten says that 
 I** the trustees have power to appoint for life, or for a term of 
 ^ears, or during pleasure." 
 
 Apart from any implication of law arising from the nature of 
 )laintiff's office under the charter, we see nothing in the 
 evidence of any contract for any engagement of plaintiff 
 )eyond a general hiring, which the law would probablv hold 
 be a yearly hiring, determinable, as such, in the usual man- 
 ler. m-m.p^rm%^mi.. .?m-^JtvUi»i?ifti- ■i'fn;i,*ib.>v(<^ i: 
 
 The charter gives full powers to the trustees to regulate the 
 mmber, residence and duties of the professors, the manage- 
 lent of the revenues and property of the college, and the 
 Stipends, <&c., of the professors, officers and servants thereof, and 
 \]&o froni time to time to vary and alter their statutes. ^<:j .ri^v;^ 
 
 Section 15' enacts, that if any complaint respecting the con- 
 luct of the principal, or any professor, master, tutor, or other 
 >fficer of the college, be made to tiie trustees, they may 
 Institute an inquiry, and in the event of any impropriety of 
 sonduct being duly proved, they shall admonish, suspend, or 
 3move the person offending, as to them may seem good. 
 [Sec. 16). Provided always, that the grounds of such admoni- 
 tion, reproof, suspension or removal, be recorded at length in 
 the books. 
 
 Section 25 provides, that five trustees, lawfully convened, 
 shall be a quorum for dispatch of business, except for the dis- 
 posal and purchase of real estate, or for the choice or removal 
 )f the principal or professors, for any of which purposes there 
 shall be a meeting of at least thirteen trustees. 
 
 If the effect of these clauses be to prevent the removal of a 
 )rofes8or, except for impropriety of conduct, <fec., the view of 
 the late Vice-Chancellor, as to a power to appoint during 
 )lea8ure, can hardly be sustained. 
 
 The sections, no doubt, allow such a complaint to be made, 
 md an inquiry and a power of correction or removal ; and it is 
 further clearly provided, that a professor cannot be removed 
 3xcept at a meeting of at least thirteen trustees. 
 
 If the effect of the charter be, that the tenure of office of a 
 Iprofessor is for life, subject to removal only for expressed 
 jimpropriety of conduct, then it seems to me that the trustees 
 Icould not lawfully appoint, during their own pleasure, as my 
 (brother Spragge points out at page 399 of his judgment. (See 
 I also Darlington School case, 6 Q. B. 682 ; and per Lord Lynd- 
 I hurst, 8 Law Journal, 10.) 
 
The plaintiff, nnder the charter, is a member of the senate. 
 As Buch, it may be argaed that he is a corporate officer, and 
 falls within the rale to be found in many books, that, as in 
 Grant on Corporations, 34, " Where a charter gives power to 
 appoint an officer, an appointment for life will be mtended, 
 unless it appears otherwise, either from other parts of the 
 charter, or the nature of the office." — Oomyn's Digest, Fran- 
 chise, F, 82. 
 
 It is not easy to find any direct anthority as to the tenure of 
 a professor. Is it an oj^ce in the sense used in many of the text 
 writers ? Is he a public officer in the same sense 9 
 
 In a removal case, reported in 7 East 167, Hex v. Mersham, 
 the question was whether a person came within the statute 
 3 "Wm. and Mary, ch. 11, as "holding a public office or 
 charge." Lord EUenborough says : — " An office must be 
 derived immediately or mediately n-om the crown, or be con- 
 stituted by statute ; and this is neither one nor the other, but 
 merely arising out of a contract with the parish, which the 
 parish officers, with consent of parishioners, are by the statute 
 enabled to make with any persons, for the maintenance and 
 employment of the poor. The question might admit of a dif- 
 ferent consideration, if any distinction had been established 
 between & public office and a. jmhUc cha/rge; but I can find no 
 such distinction, either in any adjudged case, or in the sense of 
 the statute." Again he says : — " Perhaps the best criterion for 
 determining whether this man were an officer, was to consider 
 whether he were indictable for the negligent discharge of the 
 duty which he engaged to discharge." Lawrence, J., says : — 
 " This is clearly no office, but an employment arising out of a 
 contract." 
 
 Baggs' case (11 Rep. 98) is always cited on this subject of 
 tenure ; but it concerns the disfranchising of a freeman in a 
 borough. 
 
 The Darlington School case (6 Q. B. 682) reviews many of 
 the authorities. There the schoolmaster, under the charter, 
 waa removable in the discretion of the governors. Chief 
 Justice Tindal notices the plaintiff's contention that his 
 appointment was during good behaviour ; " so that he had 
 in contemplation of law a freehold in his office. * * If he 
 had, as in Baggs' case, a freehold in his freedom for his life, 
 and with others in their politic capacity, an inheritance in the 
 lands of the corporation; or if the office of schoolmaster 
 resembled that of a parish clerk, as in Gafikin's case (8 T. R. 
 209), the inference drawn from these cases would be correct. 
 
e 
 
 the senate, 
 officer, and 
 
 that, as in 
 es power to 
 e intended, 
 )art8 of the 
 igest, Fran- 
 be tenure of 
 y of the text 
 
 K Mersham, 
 the statute 
 ic office or 
 must be 
 or be con- 
 B other, but 
 which the 
 the statute 
 Bnance and 
 nit of a dif- 
 established 
 can find no 
 the sense of 
 jriterion for 
 to consider 
 arge of the 
 J., says : — 
 ig out of a 
 
 subject of 
 3man in a 
 
 B many of 
 le charter, 
 3. Chief 
 
 that his 
 it he had 
 
 * If he 
 >r his life, 
 ice in the 
 oolmaster 
 
 (8 T. B. 
 B correct. 
 
 18 
 
 tut, looking to th . cerms of Queen Elizabeth's Patent, we 
 'link the omce in question is in its original creation deter- 
 linable at the sound discretion of the governors, whenever 
 ich discretion is expressed ; and that it is, in all its legal 
 [ualities and consequences, not a freehold, but an office ad 
 Idtfum only." 
 
 He subsequently declares that whatever tenure was created 
 the charter, the governors had no power to make bylaws 
 Itering it. 
 
 As to corporate offices, it had long been asserted on Baggs' 
 
 3e " that there can be no power of amotion unless given, 
 
 |y charter or prescription." Lord Mansfield, in Rex v. 
 
 jchardson (1 ^bur. 539) says: — "We think that from the 
 
 iason of the thing and from the nature of corporations, and 
 
 >r the sake of order and government, this power is incident as 
 
 luch as the power of making by-laws." 
 
 But the chief difficulty with us is, whether the office of the 
 
 )laintifif is in itself of that public character which warrants the 
 
 iterference of either a court of law or equity, beyond the 
 
 Lvestigation of any claim for pecuniary damages from a 
 
 wrongful dismissal. 
 
 Queen's College had no public endowment or foundation. 
 [t has a royal charter of incorporation — a power to grant 
 legrees, but no right of visit or inquiry was reserved to the 
 jrown. 
 The case cited of Gibson v. Ross (7 Ola. & F. 250), in the 
 [ouse of Lords, expressly decides that the mere fact of being 
 Incorporated by charter did not make the Tain Academy 
 >ther than a private institution. The Lord Chancellor (Cot- 
 tenhamj says : — " It has been decided that when individuals 
 jtablish a school to be maintained from private funds, the 
 igulations under which public schools are conducted are not 
 ) be deemed applicable to them. A public schoolmaster is a 
 )ublic officer, and as such ho cannot be dismissed without an 
 issigned and sufficient cause. But it is clear that in the case 
 )f a private trust this rule does not apply. * * Then arises 
 mother question, namely, one relating to the effect of an 
 Incorporation. I asked, in the course of the argument, 
 rhetner there was any line of distinction drawn between the 
 ;ase of a private establishment, the members of which had 
 >een incorporated, and a case in which no such incorporation 
 lad taken place, and I could not find that any such distinction 
 Ihad ever been adopted. If so, then I am sure that your lord- 
 iships would not for the firet time inti'oduco a distinction ; 
 
14 
 
 ■1'^ 
 
 nothing could more distnrb the arrangement of a private 
 establi^ment than that a subordinate omcer in it should bo 
 considered to have a fee in his office." 
 
 Again, " If the charter of incorporation impose any restric- 
 tions on them, they would by the acceptance of it be con- 
 sidered to enter into a contract with the crown to exercise 
 their authority, subject to these restrictions. * * It is 
 clearly established that a private society would have the right 
 to dismiss a master, and there is no difference here between 
 these parties and any other private society, except that these 
 parties are incorporated. 
 
 Lord HardwicKC said, in Attorney-General v. Place (2 Atk. 
 88), " The charter of the crown cannot make a charity more or 
 less public, but only more permanent than it would otherwise 
 be, but it is the extensiveness which will constitute it a public 
 one." This was a case merely on the construction of words of 
 bequest in a will. 
 
 The subject is much discussed in 2 Kent's Commentaries, 
 276. He says : — " An hospital founded by a private benefac- 
 tor is, in pomt of law, a private corporation, though dedicated 
 by its charter to general charity. A college founded and 
 endowed in the same manner is a private chanty, though from 
 its general and beneficial objects it may acquire the character 
 of a public institution. * * Every charity which is exten- 
 sive m its object may, in a certain sense, be called a public 
 charity, nor will a mere act of incorporation change a cnarity 
 from a private to a public one. * * A chanty may be 
 
 ?ublic though administered by a private corporation. * * 
 'he charity of almost every hospital and college is public, 
 while the corporations are private. To hold a corporation to 
 be public because the charity was public, would be to confound 
 the popular with the strictly le^al sense of terms, and to jar 
 with the whole current of decisions since the time of Lord 
 Coke." At page 298 the same author points out the distinc- 
 tion between "amotion" and "disfranchisement," the former 
 applying to officers, the latter to members. 
 
 In the celebrated case of Bowdoin College (Allan v. McEean, 
 1 Sum. 277), Mr. Justice Story elaborately reviews the law ; 
 noticing at large the equally famous Dartaiouth College case 
 (4 Wheaton, 634), he says, " that Chancellor Kent has stated 
 the law with his usual accuracy and clearness ;" and adds, 
 "that a college, merely because it receives a charter from 
 government, Siough founded by private benefactors, is not 
 mereby ccistituted a public corporation, controllable by the 
 
)vernment, is clear beyond all doubt. So the law was 
 aderstood by Lord Holt in his celebrated judgment in Phil- 
 ips V. Bury (2 T. R. 346)." 
 
 He proceeds, " if we examine the charter of Bowdoin Col- 
 jge, we shall find that it is a private, and not a public corpora- 
 on. It answers the very description of a private college, as 
 lid down by Chief Justice Marshall, in Dartmouth College v. 
 Woodward. It is an eleemosynary institution, incorporated 
 )r the purpose of perpetuatinff the application of the bounty 
 1" the donors to the objects of that bounty. Its trustees were 
 riginaUy named by the founder, and invested with the power 
 ■ perpetuating themselves. They are not public officers, nor 
 
 it a civil institution, but a charity school or a seminary of 
 iucation, incorporated for the preservation of its property, 
 id the perpetual application of that property to the objects of 
 i creators." 
 
 It is not expressly stated in the report, but it may be inferred, 
 lat Bowdoin College had university powers to grant degrees, 
 J in one of the by-laws it speaks of " fees for any diploma or 
 ledical or academical degree." 
 
 Dartmouth College was, by royal charter, empowered to 
 
 rant " any such degree and degrees as are usually granted in 
 
 ^ther of tlie universities or any other college in Great Britain." 
 
 Queen's College is a very wide corporation, embracing all 
 lembers and laymen of the Presbyterian Church in Canada in 
 )nnection with the Church of Scotland, in full communion 
 rith said church. The government is vested in twenty-seven 
 rustees, and all the congi*egations in the province admitted on 
 tie roll of the Synod may name one person, who shall be put 
 irn a list of names, from which, under certain restrictions, new 
 rustees must be selected. 
 
 I am not prepared to hold that to this corporation we are 
 lot to apply the rules of law referred to as governing such 
 4stitutions in the two American cases. 
 
 It rests wholly with the trustees to create the office of a pro- ! 
 388or, and such an office is not, as it seems to me, of the 
 isence of the corporation. The latter could exist without it. 
 
 If the charter were silent as to provisions for the removal of 
 
 professor, I should at once hold that such an officer is 
 Removable b^ the trustees, and his office or situation at once 
 by their d(3(;i8ion be vacant, subject to any claims for salary in 
 Ihe usual way, if the engagement be of a yearly nature ; but 
 lot subject to any jurisdiction of either a court of law or equity 
 
 restore ; that the service would be of a peculiarly personal 
 
16 
 
 character, and damages for any proved breach of contract the 
 only remedy. 
 
 It is conceded that the trustees could abolish the chair of 
 classical literature, and that its incumbent's rights would cease 
 with it. 
 
 Mr. Weir could be " amoved " from the office of professor, 
 although he could not, without cause, be " disfranchised " as a 
 member of the corporation, according to Chancellor Kent's 
 definitions. His dismissal from his situation still leaves him a 
 member of the corporate body. 
 
 It seems also conceded that the trustees can alter and regu- 
 late the emoluments of any professor. 
 
 K This power is important to be considered. Unless the plain- 
 tiff can maintain his right to a legal interest or estate in the 
 office and its emoluments, as they were at his induction — if he 
 be always liable to any reduction in the discretion of the trus- 
 tees, or to an optional abolition of the office by the same body, 
 it seems more a matter of form than substance to urge his right 
 to a restoration by legal process. 
 
 The office is not essential to the existence of the corporation, 
 or to the discharge of its functions ; it exists at the discretion 
 of the trustees, and its emoluments depend also on them. 
 
 It onlv remains to consider if the words of the charter 
 restrict the right of removal, which (in the absence of such 
 words) I think clearly exists. 
 
 It seems apparent, I think, that an^ removal of a protessor 
 must be at a meeting of at least thirteen trustees (Charter, 
 sec. 25.) 
 
 The supplemental answer shows that this took place in May, 
 1865, after the bill filed, i'ptoi ■>Amn.Mi: -^jMy^iMiumt' H- mr .a - 
 
 But does section 15 declare the only manner and the only 
 cause for which a professor can be removed ? " K any com- 
 plaint respecting the conduct of the principal, or any professor, 
 master, tutor or other officer of the said college, be at any time 
 made to the board of trustees, the^ may institute an inquiry, 
 and in the event of any impropriety of conduct being duly 
 proved, 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." 
 
 These sections do not seem to have been followed in the 
 plaintiff's case. Is he still, therefore, de jurey professor of 
 classical literature ? ;:;>;r :» 
 
 If a professor can only be Removed in the manner prescribed 
 
ract the 
 
 chair of 
 lid cease 
 
 rofessor, 
 3d " as a 
 p Kent's 
 Dshiiu a 
 
 od rega- 
 le plain- 
 e in the 
 11 — if he 
 the trus- 
 ae body, 
 bis right 
 
 )oration, 
 iscretion 
 m. 
 
 charter 
 of snch 
 
 )rotessor 
 Charter, 
 
 in May, 
 
 the only 
 ny com- 
 rofessor, 
 my time 
 inquiry, 
 ng duly 
 love the 
 
 always, 
 Dsion or 
 
 board." 
 d in the 
 essor of 
 
 escribed 
 
 17 
 
 by this section, the same rule must certainly apply to the other 
 persons named, viz., " masters, tutors and other officers." All 
 of whom would be equally irremovable except as therein pro- 
 vided. Sir James Wigram, in the case already cited, pointed 
 out that if the master of the grammar school could make out 
 the existence of a trust in his favor, the " Janitor," on bemg 
 discharged, might equally come to court for restoration. 
 
 A master or tutor, casually employed, or any other of the 
 many "officers" about a University, might, on one construction 
 of this section, bo equally irremovable with the Priucipal,i?,tfti 
 
 Once granted that the office is one under the original ch^er, 
 in the sense contended for by plaintiff, it seems to follow on the 
 authorities that its holder takes it with all its original rights of 
 tenure, and that even by agreement he cannot be reduc^ to a 
 lesser interest. 
 
 We may give effect to the 15th and 16th sections by confin- 
 ing them to cases in which, on complaint made, the officer can 
 be dismissed, leaving him no claim for legal damages thereby. 
 This would be a dismissal for cause. 
 
 On the other hand, a dismissal such as took place in this 
 case, at the May meeting, would be at the discretion of the 
 trustees, and may leave tnem liable to an action for arrears of 
 salary, in the absence of a notice terminating at the proper 
 time, on the usual principle. 
 
 There seems no alternative between this construction and 
 declaring that every professor, master, tutor, or other officer, 
 holds his appointment irremovable, except for cause, in strict 
 pursuance oi the 16th section. 
 
 The words used in the charter declare no distinction between 
 the higher and the lower officers, and the rights urged by 
 plaintin must, if he succeed, be conceded to many below him 
 m position. 
 
 I have already stated that I consider he fails to establish his 
 rights merely as inherent to his holding of such an office under 
 such a charter, and that his main dependence must be that any 
 proceeding to oust him must be under those sections. 
 
 We should pause long before giving effect to plaintiff's argu- 
 ment, with all its inevitable consequences. 
 
 As Lord Oottenham said in Gibson v. Boss (7 Glk. & F. 250), 
 " There are many cases in which it would ]be highly inex- 
 pedient for the interests of a body like these trustees, that a 
 man should continue in his situation, though it mi^t be diffi- 
 cult to show a legal ground for his removal. He may be 
 unsuccessful in the discharge of his duties : he may have great 
 
abilities, but yet be unable effectually to exert them in thd 
 instruction of his pupils. This might bo great evil to an insti- 
 tution of this nature, and yet it might not amount to a Cause 
 whicTi in a court of justice would justify the dismissal of the 
 master. At the same time it must be admitted that the 
 circumstances I have mentioned would form a good ground for 
 desiring the master's dismissal." 
 
 It is needless to enlarge this list of actual, thougli not perhaps 
 legal disqualifications. An unstained moral character, high 
 intellectual attainments, and unsparing activity in the dis- 
 charge of duty, may, and often do, co-exist with unhappy forms 
 of temper, restless irritability and morbid sensitiveness, or 
 jealousy, which may utterly unfit their possessor for the useful 
 discharge of the delicate duties of education, and the creation 
 of respect and confidence amongst fellow-workers and pupils. 
 
 The court anxiously avoided all intermeddling with the 
 merits or demerits of individuals in the unfortunate disputes 
 that have resulted in this litigation. ^t 
 
 It is sufficient to say that, wherever the blame rested, & 
 state of things was disclosed most injurious to the best interests 
 of Queen's College. 
 
 We are anxious to carry out the benevolent directions of 
 the last section of the royal charter, which enjoins on courts of 
 justice that its language " shall be construed and adjudged in 
 the most favourable and beneficent sense for the best advantage 
 of our said college." '^' :m^ma' ■ .miiifjim't ^ymw-md$ •i^rMf6'^'!y 
 
 I have bestowed much cbhsideration on the argument of 
 plaintiff as to his legal right as professor, and have at last 
 (although not without some doubt), arrived at the conclusion 
 that he was removable by the trustees, at a meeting wheW 
 the statutable number of members was present, althou^ not 
 for cause under the 15th section. 
 
 I think the appeal must be allowed — that the plaintiff's bill 
 in the court below should be dismissed. I think the case 
 Against him, as to the want of jurisdiction in the court below, 
 is reasonably clear ; that his intetest in his office is not such as 
 he claims ; and lastly, that the case disclosed is one in which 
 neither a court of equity nor law should interfere, except on 
 the very clearest and most conclosive pressure of authority and 
 
 -L;iii.;.i:,xi. irK-.;; 
 •t:-Jt>i lift ■:;-f 
 
 ari 
 
 
 .1 
 
 la !in 
 
 
 ,•/;:, 
 
 lO'i'f 
 
 • ! iH,^} 
 
 I'M fWnr 
 
If 
 
 U'} 
 
 :ffn 
 
 Tuesday the 2\oenft/-foriTth day of AprU, in the Ikoenty^inth 
 M^ year qf the reign of Her Majesty Queen Victoria^ and in 
 j **» the year qf ow lord 1866. 
 
 IN CHANCERY. 
 
 naK-CHANOXLLOB HPRAQOX. 
 
 ■'■■.ti 
 
 Bbtwbbm 
 
 THE BBYBRBND GEORGE WEIR, 
 
 u<i x<-^ 
 
 Ain> 
 
 Plaintif, 
 
 ■I-' 
 
 Tkb Rbvbrbio) Alsxandbr Mathibsov, Thb Rkvbr- 
 BND Hugh Urquhart, Thb Rbtbrbkd Albxakdbb 
 Sfbncb, Thb Rbvbrbrd Johk MoMoannB, Thb Rbybb- 
 BNb' William Mazwbll Inolis, Thb Rbvbbbnd Jambs 
 .n^» ' Williamson, Thb Rbvbrbnd Duitoar Morribov, Thb 
 
 Rbvbrbrd Gborob Bbll, Thb Honourablb John 
 Hamilton, John Paton, Gborob Datidsor, Gborob 
 Nbilbor, John Cambror, Albxardbr McI^uuv, Huoh 
 Allan, Albxardbr Morris, Gborob Maixooh, Albx- 
 ANDER LooiB, Thb Rbybrbitd John Cook, D.D., Thb 
 Rbvbrbnd Jambs 0. Muir, D.D., Thb Rbvbrbnd John 
 Barolat, D.D., John Thompson, John Grbbnshibldb, 
 Edward Mallooh, Andrew Drummond, and Qubbn'b 
 , ^ College at Kingston, 
 
 De/endanti, 
 
 Upon motion made unto this Court on the sixteenth and 
 twenty-third days of April instant, on behalf of the above- 
 named Defendants, who have answered the Plaintiff's bill in 
 this cause for an order to carry into effect the order and judg- 
 ment of the Court of Error and Appeal, made upon the appeal 
 from the decree of this Court oy the said last-mentioned 
 Defendants, and bearing date the sixteenth day of March last, 
 in presence of Counsel for the said Plaintiff, and for the last- 
 mentioned Defendants ; upon opening of the matters, and upon 
 hearing read the said order of tne Court of Error and Appeal, 
 and the several decrees and orders in this cause, andi upon 
 hearing what was alleged by Counsel aforesaid, this Court did 
 order the said motion to stand over for judgment, and the same 
 coming on this present day for judgment, wis Court doth order 
 that it be referred to to the Master of this Court, to take an 
 account of the sums of money, in and by the said order on 
 appeal, ordered to be repaid by the said Plaintiff to the said 
 Defendants, Queen's College, at Kingston, including the sum 
 of seven hundred and fifty dollars paid by the Defendants, 
 Queen's College, at Kingston, under the order of this Court, 
 
bearing dato tho thirty-first day of October, one thousand eight 
 hundred and sixtv-four; and this Court doth further order 
 that the Plaintifif ao pay to the Defendants, who have answered 
 tho said bill, their costs of this suit, to be taxed by the said 
 Master, including the costs of the motion for an injunction, and 
 tho costs of the rehearing, and to repay to the said Defenaants 
 the deposit and the other costs, if any, of the said rehearing, 
 deceived by the Plaintiff from the said Defendants. And this 
 Gourt doth fVirther order that the bonds filed by or on behalf of 
 the said Defendants by way of security for the performance of 
 the decree, and for the costs of the saia appeal, respectively be 
 vacated and discharged. 
 
 (Signed) 
 r>w- A. GRANT, 
 
 '■'Kj^t. ti,-..v-... r fjff' anT,.(i..-. ■..•..■.■....,. ■ ,>,-,,,;■, 
 
 Jieffmrar. 
 
 teiftp D.l* (Ui^-U ah^;*«t ^Ijmjjn /^- iuui :it>rhd.''M ^'HHp ,mU itf ^fhnn 
 
 ' J*0)fAy!UM|i»-j[?i.fji i^^ mh ti^ >.Hj|f*^,/ '^iiij-:^)'). y^a'>'i.i> i^fit - iidtnt 
 .i.i!;' ;b'u-M "isiVjiii iyio>";U !<<•:,)! I J 4itn|» ^;K«^v4l>i'« ^U)^^ij:\i^t^.i 
 -rt^M mi vh ('.(.« viilhriiu-i i.iy- '•;!; " 'i i-':Aiu-0.'i<> -}u-:nh:a-i-f :>.l 
 
 hliy J'iS'*').'-uiJ ,wi(ia"sn";in i.M-i(;.iH;>' v;] I,;iiV:U>t h*.« ;{m(-« i.'ai'!A,^»;* 
 
 'i;>fii> (ii-ih "^inr> ^h^i ,ii-i[j{ii%iiii{wi 7i;h *'/!»(';'>••<{ <-fii:f fl'.v ;^uu.i "i 
 
 iixf H^^tJ o3 .tiiio'J «b{rlv t'>t?./?M Oiii: i>i ^4 iifji.*i«si«)i-t>t:.'-i;i45uj 
 
 $i!;4>. vfll ')' Tlii-i'.;!/!' Li!:,. Otll 'l\i ^:H}U[r\ ' i .^.t L )M;i!»'f<) JiJ'»|',p 
 
 
 5 
 
 ^ 
 
 V