subsequent usage. On the contrary, the evidence leads to a directly opposite conclusion; not only is there no evidence of any usage to shew that the original constitution has been altered, but it appears to me that the school has been carried on and conducted as a grammar-school down to the present period.

The next question, therefore, to which my attention was directed, was, as to whether or not this gentleman could or could not be removed from the school; because an attempt was made to remove him by an action of ejectment, brought to recover possession of the school-house. It is said, that Mr. Smith, who is the present master of the school, when the vacancy took place by the death or retirement of Mr. Parker, applied to be appointed; and Mr. Whittington, who was acting as the clerk of the corporation, said, that the corporation insisted that the party, who should succeed to the school, should succeed to it upon the same terms on which it was held by Mr. Parker; and the terms upon which it was held by Mr. Parker, Mr. Whittington says, were distinctly and precisely explained to Mr. Smith. Mr. Smith declined accepting the school upon those terms, and he left Mr. Whittington; but, after some interval of time, he again returned, and then informed Mr. Whittington. he was willing to take the school upon those conditions. Now, Mr. Smith says, that, at that time, he was not apprised of the nature and character of the school; that he did not know it was a grammar-school in the strict sense of the word; and that it was in ignorance, that he acceded to those terms. The corporation had no right to impose such terms; they acted improperly in so doing, and any agreement of that description, entered into between the patrons of the school and the person who was to succeed as schoolmaster, this Court, certainly, would not enforce.

What, then, was the appointment of the Rev. Mr. Smith? The only evidence that the Court can look at with any propriety, for the purpose of knowing the nature of the appointment, was a document which was given in evidence in this cause. The document to which I allude, is the express nomination and appointment referring to the decrees in the time of Charles I. and in 1694.

Under the powers and authorities with which they are invested by these decrees, they nominate and appoint Mr. Smith to the school in general terms, to receive all the fees, profits, and emoluments incident, and by right appertaining to that office. I see, in the evidence, no other appointment, except that to which I have referred-a nomination and appointment under the hands and seals of the bailiffs and burgesses, and, afterwards, presented to the bishop, in order to obtain a licence. Mr. Smith was licensed accordingly. What, then, is the result and effect of this general nomination and appointment in pursuance of the powers intrusted to the patrons of the school? They have, by the decree, a right to nominate and appoint the schoolmaster:-they have exercised that power; but I do not find anywhere that they have a right to remove the schoolmaster, as long as he shall continue to conduct himself with propriety in his office. It follows, then, that this gentleman, having been nominated and appointed by the corporation, and there not being the slightest ground to impute any misconduct, is irremovable by the corporation, as long as he continues to act with propriety. I think, therefore, the Vice Chancellor was perfectly correct in saying, that this gentleman held his office irremovably, as long as he behaved himself with propriety.

The third point to which the attention of the Court was directed, was with respect to the school-house and residence. The school-house was originally in the High Street; and by the decree of 1694, the upper part of that building was appropriated to the use of the school, and was directed to be kept in repair by the corporation;-a new place was afterwards substituted by the corporation, and ultimately the present school-house and residence of the master were substituted. There is no doubt, I think, that part of the funds of the corporation were generally applied to the erection of that house; but it is equally clear that the house was partly erected out of funds, which had been bequeathed by different individuals for that purpose; and if, under these circumstances, this building had been substituted for a former building, and had been enlarged and extended by bequests in the manner I have stated, it is quite impossible to say, that the master can be removed

from it. I think, therefore, the Vice Chancellor was perfectly right in preventing the ejectment being proceeded in.

The costs form a very material consideration in this case; and, after the length of inquiry it has undergone, I feel some difficulty respecting them. I think Mr. Smith was perfectly right in resisting the attempt of the corporation. Mr. Smith, therefore, not only must not pay any costs, but he must be indemnified against costs. If the costs were to come out of the revenues of the school, the costs would be thrown substantially upon Mr. Smith; they cannot, therefore, come out of that fund. If they are to come out of the funds of the corporation, I am not sufficiently apprised of the state of those funds, and the application of those funds, to be able to know whether or not I am acting properly. It is possible that the greater part of these funds may be usually applied to some charitable purposes; if the costs, therefore, come out of those funds, it may be injurious to those charitable objects. At the same time, I feel great difficulty in saying, that those members of the corporation, who have been active in instituting these proceedings, shall personally themselves pay the costs. The members of the corporation may have thought, that it was greatly for the advantage of Chipping Sodbury, that this school, instead of being a grammar-school, should be a school for the purposes of general education; there are many affidavits to that effect; they may have thought it was not really a grammar-school in its original foundation; or, if so, that it had lost its original character by subsequent usage; and I do not see sufficient in this case to shew any want of bona fides on the part of the individuals instituting these proceedings, to lead me to think, that, personally, they ought to be liable to the costs. Inquiries have been directed by the Vice Chancellor, for the purpose of ascertaining what has been the increase of the rents, which are the subject of the decree. That these rents have greatly increased, there is no doubt; and the Master is directed to form a new scheme for the school, and to state what would be a proper salary for the master. It is possible, when those inquiries are completed, that there may be a fund arising out of the increased rents, which may be not impro

perly chargeable with the payment of the costs. According to my present impression, it would be premature to throw upon the corporation, and the individuals named in the decree, the expenses of this proceeding up to the hearing; and it will be far better to postpone the consideration of the costs, until the Master shall have made his report.

1829. Ex parte GOULDING AND DAVY, Dec. in the matter of O'NEILL AND CO.

A partnership acceptance, given in discharge of the several debt of one of two partners, cannot be proved against the joint estate, by a person who took it in discharge of such several debt, though it was left for accep tance at the house of business of the partnership, and thence returned accepted, unless the holder makes out that it was accepted in the partnership name, with the knowledge and assent of the other partner.

O'Neill and Martin carried on business in Liverpool, under the firm of O'Neill & Co. O'Neill entered into a charter-party on his own separate account, for the hire of a vessel belonging to the petitioners: and, the freight being payable on the delivery of the cargo at Limerick, the consignee, appointed by O'Neill at that place, drew a bill of exchange for 3197. 1s. 2d. on O'Neill & Co. payable in London, and indorsed it to the petitioners. This bill was remitted to them at Liverpool; they, early in the day, left it for acceptance at the counting-house of O'Neill & Co. with a partnership clerk; and, in the evening, it was returned to them by a partnership clerk, accepted in the name of O'Neill & Co.

The acceptance was in the handwriting of O'Neill; but the petitioners, at the time when the bill was returned to them, did not know of whose handwriting the acceptance

was.

A commission of bankrupt having issued against O'Neill and Martin, the question was, whether this bill could be proved against the joint estate.

The Vice Chancellor, Sir John Leach, was of opinion that this bill could not be proved

against the joint estate, and dismissed the petition (1).

The creditor appealed.

in discharge of his contract, so as to bind the firm. In this case, Goulding knew that the contract was a several contract,—that it was in the name of O'Neill alone, and not of

Mr. Lowndes, contrà.

The following authorities were cited :-
Shirreff v. Wilks, 1 East, 48.
Swan v. Steele, 7 East, 210.
Ridley v. Taylor, 13 East, 175.
Green v. Deakin, 2 Starkie, 347.

The Lord Chancellor. - The question here arises with respect to the proof of a debt under the commission against O'Neill and Martin as partners.

O'Neill, on his separate account, and not in his partnership character, entered into a contract with Goulding, who was the owner of a vessel. It was a contract of charterparty, by which Goulding undertook that his vessel should proceed to Charlestown, that it should then take in a cargo of timber, proceed to Limerick, and there deliver the cargo. On the delivery, he was to receive one half of the freight in money, and one half in a good bill drawn in Liverpool, at a date not exceeding four months.

The vessel proceeded on her voyage, took in a cargo according to the charterparty, and delivered it at Limerick. There part of the freight was paid in cash; and for the residue, a bill of exchange on O'Neill & Co., and not on O'Neill alone, was given by the person who there represented O'Neill.

The bill was remitted to Goulding at Liverpool, and was sent in the usual course of business to the house where O'Neill and Martin, under the firm of O'Neill & Co., carried on their business. It was left there for acceptance in the usual course of business, and, after several hours had elapsed, Goulding or his brother called and received the bill, accepted in the name of O'Neill & Co.

The question is, can this bill be proved under the joint commission?

There is no principle more clear than that, where there are partners, and one of them enters into a contract on his own several account, he cannot pledge the partnership funds or give a partnership acceptance

(1) 2 Glyn & Jam. 118.

in discharge of that several debt, a bill accepted in the name of O'Neill & Co., he took it on his own responsibility.

The only doubt I have had upon the case arose from the circumstance of the bill having been left for acceptance in the usual course of business, at the place where O'Neill & Co. carried on their partnership trade, and of its having been returned by their clerk accepted. But upon consideration, that circumstance does not alter the case; it did not conclude Martin, who was no party to the contract, nor bind him as privy to the acceptance. If it had been known to Goulding, that the acceptance of the bill was in the handwriting of O'Neill, he could have had no claim against Martin or his estate: ing that Martin was assenting to the accepand I think, that the responsibility of shewtance, lay upon Goulding. As it turns out, that the acceptance was in fact, the acceptance of O'Neill, without the knowledge or authority of Martin, the joint estate cannot be bound.

I must, therefore, affirm the order of the Vice Chancellor, who affirmed the decision of the commissioners.

nieces, the Misses Gill, to get in the debts. and arrears of rent owing to him, to let his property, pay fines of renewal, &c. and give receipts. He then continued—“ I likewise authorize my three maternal nieces, Sophia Elizabeth Gill, Louisa Gill, and Amelia Ann Gill, to deduct from the amount of monies so collected and received by them, that is to say, on every quarterday in each year, viz. Lady-day the sum of 81. each and every of them; Midsummerday, the sum of 81. each and every of them; Michaelmas-day, the sum of 81. each and every of them; and Christmas-day, the sum of 81. each and every of them, as a recompense or remuneration for their trouble, attention, and care, in preparing all the different receipts, and purchasing of such, and also collecting such several rents and profits, including the arrears of such rents, as aforesaid. And I expressly order the remaining sum of money, more or less, that is to say, first deducting, on each and every quarter-day, the several sums as aforesaid, from such money so received, to be paid from quarter to quarter, (when such rent-money is so collected by them, as aforesaid) in each year, into the hands of Vincent Declieve and Mr. Thomas Romney, for the express purpose of their marshalling such money so paid to them, Mr. Vincent Declieve and Mr. Thomas Romney, as aforesaid, by my three maternal nieces, as aforesaid, that is to say, their paying and fully discharging all and every of my just debts, &c.; and after all my debts, (as aforesaid, &c.) whether by annuities, bonds, obligations, securities, legacies, &c. are severally paid and fully satisfied, and not before such debts, &c. are fully discharged and provided for, as aforesaid, upon further trust that my said trustees, executors, executrixes, jointly, and the survivors of them, shall pay all and every of such remaining money, in form and manner required, that is to say, the rents and profits as aforesaid described and mentioned, and payable quarterly in each year, from the aforesaid leasehold messuages, premises, or otherwise, as aforesaid, &c. first deducting and making ample provision for the aforesaid contingent expenses, debts, or otherwise, as aforesaid, unto, and during the life of, my son, John Conway Philip Astley, to and for his sole and separate use and benefit;

but first, I authorize and grant absolute and unqualified power, without any control whatsoever, to my three maternal nieces, as aforesaid, to deduct from such money as aforesaid, on each quarter-day as aforesaid, the following sum, viz. Sophia Elizabeth Gill, Sl. each and every of them; Louisa Gill, 8. each and every of them; Amelia Ann Gill, 8. each and every of them; as a recompense or remuneration for their trouble and care in preparing all the different receipts and purchasing of such, and also collecting such rents and profits as aforesaid; and my son John Conway Philip Astley's receipt alone, to my aforesaid trustees, executors, executrixes, administrators, and assigns, from time to time, on each quarter-day in each year as aforesaid, shall be a sufficient discharge for the sums of money so paid to my son, and which money so paid and received, I request may be entered in such book, as aforesaid requested, and signed; and immediately after the decease of my son, John Conway Philip Astley, upon further trust, that my trustees, executors, executrixes, administrators and assigns, as aforesaid, or any of my trustees, executors, executrixes, and administrators, or his or their heirs and assigns, shall pay quarterly in each year as aforesaid, but first deducting the several sums for collecting the same as aforesaid, explained and requested by me as aforesaid, that is to say, on each and every quarterday in each year, the following sum, viz. to Sophia Elizabeth Gill S7. each and every of them, Louisa Gill Sl. each and every of them, Amelia Ann Gill 81. each and every of them, out of the rents and profits of the aforesaid leasehold property in manner and form following,-that is to say, unto such child or children during their natural lives, as my son John Conway Philip Astley shall leave at his decease, (if more than one,) as tenants in common, but if only one such child, such rents and profits to such child, for his or her sole and separate use or benefit, always subject to the contingent account of all debts, obligations, and payments of every denomination, as aforesaid described; and his or her receipt shall be a sufficient discharge to my aforesaid trustees, executors, executrixes, &c. But if it should so happen that my son John Conway Philip Astley shall die without leaving

child or children, or after the decease any of such children, then, and in that case, to pay in the following proportions,-that is to say, the whole sum so received from the rents and profits of all my leasehold property, aforesaid described, and required by me, be the same more or less, to be divided into sixteen shares, or parts, on account of its contingency, that is to say, to my sister, Elizabeth Harding, two sixteenths; to my nephew, Robert Gill, one sixteenth; to my nephew, Robert Hall, specifically, one sixteenth; to my niece, Sophia Elizabeth Gill, specifically, three sixteenths; to my niece, Louisa Gill, specifically, two sixteenths; to my niece, Amelia Ann Gill, three sixteenths; to my niece, Harriet Renaud Lavenue, specifically, two sixteenths; and to my daughterin-law, Hannah Waldo Astley, specifically, two sixteenths; and the remainder, or residue, as aforesaid, of my substance, in the parish of Saint Mary's, Lambeth, in the county of Surrey, in the like shares and in the like manner during their natural lives; but if any of the last-mentioned persons should die, then, and in such case, I request such share, or part or parts, to be transferred to Elizabeth Lavenue, and the second transfer caused by death, as aforesaid, to John Lavenue."

He also made several specific bequests in favour of the same three nieces.

and of his son's children, used express words directing the allowance of these annuities. But, when he makes a distribution of the leaseholds, upon the death of his son without issue, he makes no mention of the annuities; and, on the contrary, he directs "the whole sum received from the rents of his leasehold property to be divided as therein mentioned.'

II. The second question was, whether the persons, to whom the leaseholds were given in shares, took their respective shares absolutely, or for life only.

III. The third question was, as to the validity and construction of the gift over to Elizabeth Lavenue and John Lavenue.

A question was also raised, whether the gift of the sixteen shares was not void, as being too remote; but the proposition, that the gift was void, was abandoned.

The Solicitor General and Mr. Whitmarsh were for the plaintiff.

Mr. Horne and Mr. Knight were for the Misses Gill.

Mr. Pepys and Mr. Parker were for the defendants of the name of Lavenue.

Mr. Treslove and Mr. Wakefield were for other defendants.

The Vice Chancellor.-The first question was, whether these annuities of 321. a year were to cease at the death of the testator's son without children. It appears to me, that they were not to cease then. It was argued, that the annuities must cease, because the testator has, in express terms, ordered them to be deducted, where he directs the rents and profits to be paid to his son; and, when he provides for what is to be done upon the death of his son leaving children, he repeats the direction for the payment of the annuities; but does not repeat it, when he directs what is to be done in the event of failure of issue of his son. It was also further argued, that the language. in which the fund is given in sixteenths, indicates that the whole mass was to be included in that distribution.

With regard to the stress laid on the words, "the whole sum so received from the rents and profits of all my leasehold property," the whole must mean, the whole that should remain after making the pre