1837. ATTORNEY- petition the petition of the council, for the purpose of having trustees appointed of the charity funds. By another resolution, of the 23d of September, the proper The Mayor of officers of the corporation were ordered to take all NORWICH. proceedings necessary for the purpose of carrying the object into effect. v. The information then goes on to state the proceedings on the quo warranto informations against Spring field and Brightwell. All that is stated on that subject is "that by a certain rule or order of his Majesty's Court of King's Bench at Westminster, dated the 4th of November 1836, it was ordered that Monday the 14th of November instant should be given to the Defendant Springfield, to shew cause why an information in the nature of a quo warranto should not be exhibited against him, to shew by what authority he claimed to be mayor of the city of Norwich, on the grounds therein stated;” — not setting forth the grounds upon which the title of the mayor was to be impeached, but merely alleging the fact of the application for the quo warranto, and of the order nisi to shew cause having been granted. A similar allegation is made as to Brightwell, who was an alderman. The information goes on to state, that there was a meeting of the council on the 11th of November 1836, at which the following resolutions were passed. [His Lordship read the resolutions, and having stated the subsequent allegations and charges at length, proceeded as follows:] Throughout the whole of this information, then, there is the most general statement of the proceedings against these two individuals, Springfield and Brightwell: there is no statement of the ground on which their title is impeached; no allegation that the case only affects themselves individually: but, from the nature and terms of the information, the mode in which the title of the corporation is stated (of course looking only to the language used in the information,) almost amounts to a statement that the relator at least questioned the legal existence of the corporation itself. It is not stated in this information that that was the object of the quo warranto; but it is quite sufficient in the view I take of the case, that there is no allegation that it was not a proceeding for the purpose of attacking the legal existence of the corporation. On the other part of the case, with respect to the charity petition, there is an allegation, that certain proceedings under a charity petition were adopted by the corporation, and that those proceedings have been attended with considerable expenses; and that the council intend to pay such expenses out of the corporation fund. With regard to the fund out of which the expenses are alleged to be about to be paid, the language is as large and as general as it is possible for language to be. The allegation is, that such intended application of the funds or property of, or vested in the corporation, to such before mentioned ends, purposes, and objects respectively, or any of them, "is altogether wrongful, and directly contrary to the clear and express provisions of the said Act of Parliament, and in breach and violation of the duties or obligations of the said mayor, aldermen, burgesses or citizens, as trustees of the funds and property of the said corporation for the benefit of the burgesses or citizens, and inhabitants at large of the said city." There is no allegation of any intention to pay the Ff 2 expenses 1837. ATTORNEY v. The Mayor of 1837. ATTORNEY- V. The Mayor of NORWICH. expenses in question out of any particular fund; no allegation that such payment will interfere with any of those claimants who are directed to be paid out of the fund in the first instance: the statement is merely of an intention to pay out of some fund or other belonging to the corporation. Now there are two parts of the case material to be considered, which are, the generality of the allegations with regard to the object of the quo warranto informations, and the generality of the allegations with regard to the nature and circumstances of the fund out of which the expenses are proposed to be paid. I quite agree with the Master of the Rolls, that if a statement is made by a Plaintiff, which is in itself so ambiguous that in one sense it would not, and in another it would, amount to a charge of breach of trust, you are not at liberty, upon a demurrer, to adopt the unfavourable interpretation, and to extend the meaning of the allegation beyond that which the Plaintiff has himself stated on the record; and that by the rules of pleading, in putting a meaning on doubtful expressions, the presumption is rather against the party pleading, than the party who objects to the language of the pleading. (a) If, for instance, the allegation in a bill is, that two funds are in the possession of the Defendant, a trustee, one of which might, and the other could not, be legitimately applied in a particular mode; and that the Defendant, having those two funds, intends to make a payment, which, if paid out of the one fund, would be a breach of trust, but which would not be a breach of trust if paid out of the other, it is never presumed, on a general allegation of that description, that the payment is intended to be made out of that fund which could only be dealt with by a breach of (a) See Vernon v. Vernon, p. 145. supra. trust. trust. 1837. On the contrary, the presumption is, that what is intended to be done, is intended to be rightfully and properly done, provided there are circumstances enabling the party to do that properly, which it is alleged The Mayor of he intended to carry into effect. In considering this information, therefore, unless I can come to the conclusion that under no possible circumstances it would be proper for the trustees to pay the expenses of the charity petition out of the corporate funds, or to make payments out of those funds for any expenses incident to the opposition to quo warranto informations contesting the corporate character of members of the corporation, nothing stated in this information calls for any judgment from me on the questions which have been discussed upon the construction of the act of parliament. So strongly was it felt, indeed, that there might be cases in which the corporation would be justified in making these payments, that Sir William Follett, in his reply, was driven to use this argument, that if any particular circumstances did exist, it was for the Defendants, in their own justification, to state and explain them in their answer; and that it was sufficient for the relator to make a primâ facie case. That is contrary, however, to the known and established rules of pleading. It is for the Plaintiff to allege the grievance of which he complains; and if he does not on his record sufficiently allege it, the Defendant is not called upon to answer at all. If the case, as stated on the record, brings before the Court allegations on which two constructions may be fairly put, one consistent with the innocence of the Defendant, and the other implying a breach of trust on his part, it is contrary to all the rules of pleading to presume that that is wrong which the Plaintiff has not thought proper to allege as wrong, by not setting Ffs ATTORNEY- v. NORWICH. 1837. ATTORNEY- V. The Mayor of setting forth those circumstances which are necessary to make it so. Now, when I look at the ninety-second section of the act upon which this question turns, and consider what sort of case is consistent with the allegations in this information, I have no doubt whatever that the Master of the Rolls came to a right conclusion on this record. The corporate fund is, by the effect of this section, put under the direction of the council, and, subject to the payment of debts, it is to be applied to the several purposes therein specified. [His Lordship read the words of the section.] Independently of the provisions of this section, I apprehend it to be quite clear, according to the rule which applies to all cases of trust, that if necessary expenses are incurred in the execution of a trust, or in the performance of the duties thrown on any parties, and arising out of the situation in which they are placed, such parties are entitled, without any express provision for that purpose, to make the payments, required to meet those expenses, out of the funds in their hands belonging to the trust. Such is the rule of this Court, and such also is the rule at common law. The cases of The King v. The Inhabitants of Essex (a), and The King v. The Commissioners of Common Sewers (b), establishing the principle at law, are more applicable to this question than most of the cases in this Court usually referred to as authorities upon the subject. The Defendants in those two cases were public officers, who, having public duties to perform under the authority of acts of parliament, were held to be entitled to pay expenses legitimately and properly incurred, out of the funds (a) 4 T. R. 591. (b) 1 Barn. & Adol. 252. |