CHAPTER XVI. Chap. XVI. Injunction INJUNCTIONS AGAINST TRUSTEES. A TRUSTEE may not use the powers which the trust confers on him at law, except for the legitimate purposes of the trust. If he attempt to do so, the Court will restrain him by injunction (a). In Pechel v. Fowler (b), a case in the Exchequer, it is said to have been held that a cestui que trust could not restrain an imprudent sale by a trustee for sale, because, as he might proceed against the trustee for the consequential damage, the injury was not irreparable, but Sir John Leach, under similar circumstances, granted an injunction (e), and other authorities show that the jurisdiction rests, not upon the irremediable nature of the mischief, but upon the breach of trust (d). When a sale of trust property is conducted in such a manner, as to constitute as between the trustees, having the power of sale, and the cestui que trust, a breach of trust, the Court will at the suit of the cestui que trust restrain both the purchaser and the trustees from completing the sale (e). The smallness of the interest of the plaintiff and the fact that she was an infant, and that the suit might have been instituted from other motives, were held not to be sufficient reasons for refusing an injunction (ƒ). By the Trustee Act, 1893 (g), it is provided, in effect, that (a) Balls v. Strutt, 1 Ha. 146; (c) Anon., 6 Madd. 10. (d) Att.-Gen. v. Corporation of Liverpool, 1 M. & C. 210; Att.-Gen. v. Aspinall, 2 M. & C. 613; Balls v. Strutt, ante. (e) Dance v. Goldingham, 8 Ch. 903; and see Dunn v. Flood, 28 C. D. 586. (f) Dance v. Goldingham, 8 Ch. 903. (g) Sect. 14. This section reenacts sect. 3 of the Trustee Act, 1888, and only applies to sales made after the 24th December, 1888. no sale made by a trustee shall be impeached by a beneficiary Chap. XVI. upon the ground that the conditions are depreciatory, unless it appears that the consideration for the sale was thereby rendered inadequate; and that no sale made by a trustee shall, after execution of the conveyance, be impeached as against the purchaser upon the ground that the conditions were depreciatory, unless the purchaser was acting in collusion with the trustee (g). A man who has a common interest with others in a trust fund, or trust estate, is entitled to sue on behalf of himself and the others, for the protection of the property, by injunction (h). A trustee may bring an action against his co-trustee to prevent a breach of trust. If a breach of trust be threatened by a trustee, it is the duty of a trustee to prevent it by injunction (i). Where an injunction has been granted against trustees and new trustees are appointed who with knowledge of the order do the act restrained by the injunction, they will be committed for contempt (k). If a voluntary settlement be binding on the settlor, an injunc- Voluntary settlements may tion may be had to restrain the commission of any act by which be enforced. the settlement may be defeated (1). A mere trust for the payment of debts, executed by a man behind the backs of his creditors, and without communicating with them, is not binding on the debtor, but he may, in general, revoke the authority given to the trustees, who are merely his agents. In a case where a man, having executed such a deed, afterwards varied the trusts of the deed, the Court would not interfere at the suit of a creditor under the first deed to restrain the trustees from executing the subsequent trusts (m). The case, however, is different if the creditor is a party to the arrangement (»), or if, though not a party to the arrangement, he has been told (g) For note (g) see p. 456. (h) Scott v. Becher, 4 Price, 346; and see Ord. 16, гr. 36, 37. (See Re Chertsey Market, 6 Price, 261, 279. (k) Avory v. Andrews, 30 W. R. 565. (1) See Spottiswoode v. Stockdale, Coop. 102; Mackenzie v. Mackenzie, 16 Ves. 372, (m) Walwynn v. Coutts, 3 Mer. 707, 3 Sim. 14; Bill v. Cureton, 2 M. & K. 511; Johns v. James, 8 C. D. 744 (C. A.). (n) M'Kinnon v. Stewart, 1 Sim. N. S. 76; Montefiore v. Brown, 7 H. L. 241. Chap. XVI. by the debtor that he may look to the property comprised in the deed for the payment of his demand (o). Where a man creates a trust for particular persons, and not for his creditors generally, it cannot be revoked (p). Trust deeds for religious bodies. The Court will enforce by injunction trust deeds for religious bodies, or for the purposes of education. If a living or the right of electing the incumbent of a parish, is vested in trustees, or a particular body, and an improper appointment is made, the Court will restrain by injunction, the trustees from presenting the person so appointed to the bishop for institution (q), and will also restrain the person so appointed, or any other person than the person properly appointed, from performing divine service in the church or chapel (r). So, also, if a man be elected or appointed minister of a dissenting chapel, improperly or not in the mode provided for by the deed of trust, the Court will, on a proper application being made, restrain him by injunction from officiating as pastor or intermeddling with the services and disturbing a pastor duly elected in the performance of divine service (s). So, also, if the minister or pastor of a chapel has been improperly dismissed, the Court will restrain the governing body from hindering him in the discharge of his office (t). If ministers of dissenting chapels hold tenets differing from those of the founders, they will be restrained by injunction from preaching, although elected by a majority of the trustees or the congregation, as it is not in their power to alter the designed objects of the institution (u). So, also, the Court (0) Acton v. Woodgate, 2 M. & K. 492; Harland v. Binks, 15 Q. B. 713; Siggers v. Evans, 5 E. & B. 367. See Synnot v. Simpson, 5 H. L. 145; Johns v. James, 8 C. D. 744 (C. A.). (p) New, Prance and Garrard's Trustee v. Hunting, (1897) 2 Q. B. 19, 25 (C. A.). (9) Carter v. Cropley, 8 D. M. & G. 680. (r) Att.-Gen. v. Earl of Powis, Kay, 886. (8) Perry v. Shipway, 4 D & J. 353; Cooper v. Gordon, Eq. 258. See, as to form of order, 1 Set. 723. (t) Daugars v. Rivaz, 28 Beav. 233; Att.-Gen. v. Daugars, 33 Beav. 621. See Dean v. Bennett, 9 Eq. 627, 6 Ch. 490. (u) Att.-Gen. v. Welsh, 4 Ha. 572; Att.-Gen. v. Munro, 2 De G. & S. 122; Att.-Gen. v. Murdock, 1 D. M. & G. 86. See Shore v. Att.Gen., 9 Cl. & Fin. 355; Att.-Gen. v. Hutton, Dru. 480. will, upon a proper case being made out, restrain a chapel Chap. XVI. from being used or enjoyed by persons not contemplated by the deed of foundation, and will restrain the minister from admitting to communion persons not contemplated by the deed of foundation (x). But if the majority of the congregation, or the trustees, have the power of varying the trusts, or doctrines, the Court will not interfere (y). In Milligan v. Mitchell (z), Lord Brougham would not extend the injunction to restrain the trustees from allowing persons not duly elected from officiating in the meantime. In Rigall v. Foster (a), the trustees of a chapel were restrained from mortgaging it for a small sum without apparent necessity. In a suit instituted by parishioners for the purpose of setting Parties. aside the nomination of a clerk to the bishop by the trustees of the advowson which had been vested in them by deed in trust for the parishioners, or in the case of a suit instituted by the minister of a dissenting body to restrain the trustees from removing him, or by the trustees or the congregation to restrain a minister improperly elected from officiating, the Attorney-General, it seems, need not be made a party. It is a question between trustee and cestui que trust and the suit may be by action, and need not be by information (b). So, also, the regulation of the establishment of a dissenting chapel, not possessing a fixed income, but supported only by voluntary contributions, is the proper subject of an action and not of an information (c). An individual should sue alone, where he alone is interested (d), but the suit must be on behalf of himself and all others who possess an interest in common with him, when others are interested with him (e). All who (x) Att.-Gen. v. Gould, 28 Beav. 485. (y) Att.-Gen. v. Etherridge, 32 L. J. Ch. 161. (z) 1 M. & K. 446. (a) 18 Jur. 39. (b) Att.-Gen. v. Cuming, 2 Y. & C. C. C. 149; Carter v. Cropley, 8 D. M. & G. 680; Daugars v. Rivaz, 28 Beav. 233. (c) Davis v. Jenkins, 3 V. & B. 151. (d) Whiston v. Dean and Chapter of Rochester, 7 Ha. 532; Daugars v. Riraz, 28 Beav. 233. (e) Evan v. Corporation of Avon, 29 Beav. 144; Lang v. Purves, 13 Moo. P. C. 389. Chap. XVI. Trust deed for the appointment of a schoolmaster. Removal of schoolmaster. sue must, however, have an interest in the subject-matter of the trust; mere strangers to the trust cannot sue (ƒ). The mode set forth in the instrument or deed of foundation or the trust deed, with respect to the appointment or removal of a schoolmaster, must in all cases be adhered to (g). If the founder of a school gives no directions as to the appointment or election of a schoolmaster, and appoints no visitor, he and his heirs, as patrons, have the appointment; but if the founder appoints a visitor, then the visitor is entitled to appoint a schoolmaster (). Where trustees of a grammar-school have by the foundation deed power to remove a schoolmaster at their discretion, they may remove him without assigning any reason, so long as they do not act from corrupt to improper motives (i). But if the powers given to trustees to remove a schoolmaster are in the nature of trusts, the Court of Chancery will entertain jurisdiction, and prevent a corrupt or improper exercise of them (k). Thus, where trustees, with powers to remove a schoolmaster, deprive him of his office, from improper motives, because he had voted for a certain candidate at a particular election (), or arbitrarily, without giving him an opportunity to answer the charges against him (m), the Court declared such removals void. In Willis v. Childe (n), power having been given to the trustees, under a scheme of the Court for the regulation of a grammarschool which had been founded by King Edward the Sixth, to remove the schoolmaster "upon such grounds as they shall in their discretion in the due exercise and execution of the powers and trusts reposed in them deem just," Lord Langdale, being of opinion that the scheme of regulation did not confer on the trustees a power to dismiss the master arbitrarily upon any (f) Ib. (g) Town of Salop v. Att.-Gen., 2 Bro. P. C. 402. (h) Att.-Gen. v. Lord Carrington, 4 De G. & S. 140. (i) Reg. v. Darlington School, 6 Q. B. 682; Hayman v. Governors of Rugby School, 18 Eq. 68. (k) See Gibson v. Ross, 7 Cl. & Fin. 241. (1) Dummer V. Corporation of Chippenham, 14 Ves. 245. (m) Re Philipps' Charity, 9 Jur. 959; Re Fremington School, 10 Jur. 512; Fisher v. Jackson, (1891) 2 Ch. 84. (n) 13 Beav. 117. |