to apply to the particular charitable purposes mentioned. They are good charitable gifts. None of the beneficiaries are incorporated under the Act of 1861, and s. 3 of that Act does not apply to any of the benefactions. The Church of England is not incorporated under the statute 25 Vic., No. 19. were. The Synod is incorporated, and it is a separate body from the Church of 66 When F. C. Re MARY PEATTIE, DECEASED. KING AND ANOTHER V. THE ATTORNEYGENERAL AND OTHERS. F. C. DECEASED. KING AND ANOTHER V. THE OTHERS. that the gift in that case was a gift to the whole Presbyterian Re MARY PEATTIE, Church. If that case is still law, it is clearly distinguishable. Here, the gifts are to component parts of the Church of England, which parts have legal recognition as separate entities. The gifts were not for general Church purposes. The Synod had no interest or liability. They also referred to 7 Will. IV., c. 3, s. 8; 8 Will. IV., No. 5, ss. 1, 9, and 11; 21 Vic., No. 4; The Church of England Act of 1889; The Church of England Act of 1895; Fielding v. Houison (1), Dobie v. Temporalties Board (2). In Attorney-General v. Wilson (3), the land was granted to the corporation. O'Sullivan A.G. and Woolcock, for the Crown, also contended that all the gifts were valid, and referred to Wallis v. SolicitorGeneral of New Zealand (4), Attorney-General v. Dean of Windsor (5), Halsbury Laws of England, Vol. IV., p. 673; In re Redish (6), Re Kenny (7), Attorney-General v. Draper's Co. (8), Dobie v. Temporalities Board (9). The test to be applied is on whom does the right or privilege of selecting the objects of the bounty depend. It is clearly not on the incorporated body, the Synod. Hart and Real, for the churchwardens of All Saints' Church: A body constituted of the consensual contract is not a Synod. The powers of the Synod arise from the consensual compact or contract, and acts of Synod only bind persons recognizing its authority. Cf. s. 6 of The Compact; The Compact; Long v. Bishop of Capetown (10). The course of legislation is important on this point. Cf. Victoria, 18 Vic., No. 45; Tasmania, 22 Vic., No. 20; Stop's Statutes. p. 49, Vol. I., New South Wales Act of 1866; Canada, 19 and 20 Vic., c. 141. There is no authority to establish synods composed of lay as well as clerical members. Byrnes' Ecclesiastical Law, 9th Ed., Vol. II., p. 30. And the acts and constitution of Synod only bound those who assented thereto. McMillan v. Free Church of Scotland (11), Murray v. Burgess (12). (1) 1908, 7 C.L.R. 393, at p. 406. (3) 1909, Q.W.N. 3. (5) 1860, 8 H.L.C. 369. (6) 1909, 26 T.L.R. 42. (8) 1858, 27 L.J. Ch. 542. (10) 1863, 1 Moo. P.C. N.S. 411. (12) 1866, L.R. 1 P.C. 362, at p. 371. THE QUEENsland Law REPORTER, August, 1910. 66 And, assuming the obligations are contractual obligations, they operate on individuals only, and not on property, and the consensual compact did not affect the general law relating to the acquisition and devolution of property. Fielding v. Houison (1); 8 Will. IV., No. 5; 21 Vic., No. 4, ss. 5; 28 Vic., No. 22, s. 16. By the consensual compact a branch of the Church of England was formed, and also a Synod, which was a creature of the branch. The Synod is incorporated, but the branch was not, and it exists as a voluntary association. The Church of England Act of 1895, Schedule, clauses 1, 2, and 3; definition of church in s. 1 of The Church of England Act of 1889. No person is subject to the Synod, unless he so agreed, and, moreover, a Church of England purpose" does not embrace the holding of a Synod without license from the Crown and legislative enactment, and therefore the act of the Synod in obtaining incorporation can have no effect in binding the rights of persons who did not actually agree to be bound. Harington v. Sendall (2), General Assembly of Free Church of Scotland v. Overtoun (3), Thellusson v. Valentia (4). The gifts in this case are good charitable gifts apart from the fact of incorporation, and as the Synod, and not the donees, was incorporated, the gifts are good. On the gift to missionaries and the power of the Bishop to appoint clergy: 8 Will. IV., s. 19; Down v. Worrall (5), Robson v. Flight (6), Forbes v. Forbes (7) ; 13 and 14 Car. II., c. 4; R. v. Archbishop of Canterbury (8), Income Tax Commissioners v. Pemsel (9), Wallis v. Solicitor-General of New Zealand (10). The gift to the missionaries stands, even if the other gifts fail. They are appointed by the Bishop, not the Synod. In re Rogerson (11). Of the lands of the churches to which these gifts were made, those which were not vested in the Synod were held under The Trustees of Public Lands Act, 1864, ss. 2 and 16; cf. 21 Vic., No. 4, s. 5. The Synod is a public trustee. The Trustees of Public Lands Act of 1869. It would require an Act of Parliament to give the trustees of these church lands power to transfer the legal or equitable interest therein. F. C. Re MARY PEATTIE, ANOTHER V. THE F. C. DECEASED. KING AND ANOTHER V. THE Both The Church of England Act of 1889 and The Church of England Re MARY PEATTIE, Act of 1895 show that the Synod is distinct from the Church. It is doubtful, however, if the early statutes apply to all the churches within the diocese. The property of All Saints' Church is not vested in the Synod. Its property was never under control of the Synod, and the consensual compact did not, and could not, give the Synod such control. In Attorney-General v. Wilson (1), the questions now raised were not before the Court. Kydd v. Liverpool Watch Committee (2). They also referred to Mullins v. Treasurer of Surrey (3), Duncan v. Dixon (4). Stumm and Hobbs, for the Curator of Intestate Estates: The fallacy in the argument which has been advanced to this Court lies in the contention that the Synod is merely part of the English Church, whereas it is the Church itself, at least so far as incorporation is concerned. The name taken upon incorporation is of no moment, and is not a determining factor. The cases of Re Swan's Wills (31) and McSwaine v. Lascelles (32) practically refute every argument raised by the plaintiffs. On registration, the moderator, clerk, and treasurer of the General Assembly were, in the latter case, incorporated as the Presbyterian Church of Queensland. In this case the incorporation was made in the name of the Synod, the ruling body of the Church in temporal matters. There is only one Church of England in Queensland, and there has never been more than one. The congregations are part of the one ecclesiastical body. The Synod represents the Church in temporal affairs, and has no existence apart from the Church. Its office-bearers are appointed by members of the Church, and when the Bishop, clergy, and laity forming the Synod were incorporated, they became incorporated, under whatever name they chose, only on behalf of the institution of which they were office-bearers-viz., the Church of England. To hold otherwise is to hold that the very body which governed the temporal affairs of the Church is an entirely separate entity from the Church whose Synod it is, and whom it represents. The gifts and benefactions to a community which are within The (1) [1909] Q.W.N. 3. (2) [1908] A.C. 327. (3) 1880, 5 Q.B.D. 170, at p. 173. (4) 1890, 44 Ch.D. 211. Religious, Educational, and Charitable Institution Act of 1861 are fully described in the judgment in McSwaine v. Lascelles (1), where their Lordships said, "They also think that in construing the 3rd section, they must hold every gift made for or in trust for all or any of the charitable and other objects and purposes of the institution as made to or in favour of the corporation within the meaning of that section, notwithstanding that the donor may have selected other trustees for the purpose of his bounty, and that the disposition is not directly or in terms to or in favour of the composition." These words conflict with the argument of the plaintiffs. But it is argued that if this case applied prior to 1895, it does not apply since the amending statute, 59 Vic., No. 4. It is observable in Swan's Will (2) that the Baptist congregation was registered as well as the Baptist Association of which it was a part, and in McSwaine v. Lascelles (1), Harding and Real JJ. held that a congregation forming part of a larger body could not be registered. To meet this, the statute 59 Vic., No. 4, was passed, and it enabled (i.) either a congregation or part of a main body to be registered; (ii.) or the main body itself to be registered apart from the general congregations; (iii.) declared that where such registration had previously been made, it was valid, subject to adverse rights acquired. Before the Act 59 Vic., No. 4, a separate church forming part of the Church of England could not be registered, and although gifts to an integral part may have been validated by the Act of 1895, before that time they were not valid. But the Act never intended that all congregations should have a separate existence, and indeed such a suggestion would shock the idea of unity which has always characterized the Church of England in Queensland. They referred to The Church of England Property Act of 1889, ss. 2, 9, 10, 11, 13; The Church of England Act of 1895 Amendment Act of 1901, 8. 2; Attorney-General v. Wilson (3), Attorney-General v. Ruper (4), Cheeseman V. Partridge (5), In re Garrard (6), In re Perry Almshouses (7), In re Buck (8); 7 Will. IV., No. 3; 8 Will. IV., No. 7. All (1) [1895] A.C. 618. (3) 1909, Q.W.N. 3. (4) 1723, 2 Pr. W. 125. (5) 1739, 1 Atk. 436. (6) [1907] 1 Ch. 382. (7) [1898] 1 Ch. 391; [1899] 1 Ch. 21. (8) [1896] 2 Ch. 727. F. C. Re MARY PEATTIE, |