attorneygeneral v scott February S c Amb sub nom Wilson v Dennison see Att  gentleman v Vivian Russ in re saint Stephen Coleman street Ch d presentation  to a live twentyfive trustee be to meet and to present and elect a  clergymanone die the rest be equal divide half be in favour of a the rest vote  for b upon the death of the supporter of the latter the friend of a meet and  sign a presentation for he this be void at law and can be support in equity  there shall have be a distinct notice for the meeting of all a direction that  the trustee shall meet for such purpose within four month from the death of a  incumbent do not prevent their meeting after that time trustee can make proxy  to vote in such a personal trust as the above though if a choice be regular  make at a proper meeting they may for the mere purpose of sign the  presentation disusage evidence of abandonment by consent as to part of a  constitution which arise from consent supplement two bill be bring relate to  the election of a minister for the parish of lead vesey senior er p by a  decree of Lord chancellor Bacon twentyfive of the principal inhabitant of the  parish be to present and elect a proper person be thereby appoint trustee to  meet for that purpose within four month after the death of the incumbent with  direction to keep the trust fill up and this presentation by they or the major  part of they be to be approve of by certain assistant preacher the last  incumbent die in February but it happen that by the death of sir William  milner one of the trustee a short time before there be then a equal number of  trustee who upon notice give in the church to consider the method of proceed  meet d march the candidate propose be Mr Scott and Mr kirkshaw they be equal  divide twelve against twelve so that then there be no election thus it rest  till the latter end of July when one of the trustee who vote for kirkshaw die  upon notice of which August that the friend of Scott determine to meet on the  that at which meeting seven of they be present in person and five more by  proxy and sign the presentation of Scott which they send to the other trustee  who do not think fit to sign it the first bill be by Scott as principal  concern and the trustee vote for he the end of which be single to establish  his election and to compel the other trustee who differ to join in the  presentation of Scott to make a effectual legal presentation to the archbishop  ordinary of the diocese to compel a induction vesey senior the second be a  information at the relation of kirkshaw and several other inhabitant of the  parish to establish a election set up for he in the inhabitant of this parish  at large and for a regulation of the charity Lord chancellor the first bill  must be determine for if Scott have gain a right under his election it put the  other out of the case this be one of those case which prove the wisdom of the  general ecclesiastical constitution of this country in vest the right of  collation to a live in general in the bishop of the several diocese or in the  patron of the particular church which be suppose to arise from endowment which  may be by accident and it appear that when people to amend in particular case  go out of that general rule it be common attend with inconvenience in  speculation the election of minister by the people sound well but it be not to  be so consider as in Republica platonis and it be plain that some  inconvenience arise either with bad effect in the manner or circumstance of  that election or with lawsuit as in this case by go out of the general rule to  create a particular benefit to the parish as to the election of Scott that  depend upon what be do at the two meeting and on the best consideration I can  give I see no ground in law or equity to support his election it may be  unfortunate for this parish when either of these to who character there be no  objection may have make a very proper minister but the court must consider the  question of right it be admit on all side that in point of law the  presentation of Scott have be invalid and the law be certain so and therefore  a quare hinder bring on that foundation can not be maintain all the trustee in  point of law jointtenants of this advowson and then the ordinary be not  compellable to accept the presentation for he may refuse or accept it this  bill therefore be bring to supply the defect of that presentation in a court  of equity insist that there be sufficient ground for that and to compel the  other trustee to join in the presentation if the election be not good in point  of law it be incumbent on a court of equity to see that every thing be right  transact in that election there may be a case in which a election may be in  strictness of law regular and yet such circumstance may be in it as will not  induce a court of equity to compel the other trustee to join in it for whoever  come into a court of equity to supply legal defect must come on equitable  ground and show every thing to be fair which I do not see here this bring it  to the question whether here have be a sufficient valid election of Scott what  I ground myself upon be that the decree require not only a vesey senior  presentation but election which put a end to what be insist upon that this be  but a presentation if any one or two of the trustee have meet and sign a  instrument of presentation they may have send it about to the house of the  other but the decree require a previous election in order to which there must  be a meeting and assembly it happen fortunate for the parish that at the death  of the last incumbent the number of trustee which it be intend shall be odd be  then equal the duty of elector at meeting be to see and hear the proposal of  any candidate that shall offer and to judge of their merit and offer reason as  to their fitness vesey senior er p I consider what be do subsequent to the  death of the trustee who vote for kirkshaw and the meeting on seven of August  real and in fact as carry on the former election and several objection have be  make to this meeting and this act as to the first objection that the meeting  be hold after the four month that I be of opinion be not sufficient for though  it be true there be such a direction in the decree yet that be only directory  and if all the survive trustee have meet after the four month on a proper  summons it will be very good and proper to be compare to the case of the  borough of Lansdown in roll Abr which have be since hold to be law where the  election be to be by a select number within eight day and they do not meet  till long after it be hold only directory and that by their constitution they  have a general power of elect so here the trustee have the advowson in they it  be incident to that legal estate vest in they it be not intend to take away  that right and the ground be in that case that the word be affirmative and not  negative the next objection be that there be no approbation of assistant  preacher as require by the decree but I be of opinion that be not a objection  inthis election it be true that it be a direction by consent in that decree  but it have not be observe for a long time and plain that from the restoration  to this day there have be no regard to it this be a trust a right a patronage  vest in they for benefit of the parish not so as to create a devolution to the  parishioner in general for the sense of the decree be to avoid that as this  direction be for the benefit of the parish and arise by consent it may be lie  aside by common consent and the general disusage be a evidence of such consent  to lie aside that part of the constitution as useless it be to be compare  therefore to the case of a presume bylaw where in a corporation the election  be vesey senior vest in the corporation in general on particular circumstance  annex and afterward that election vest in a select number and those particular  circumstance discontinue the court of law presume a ancient by law to vary the  constitution the law allow a presume bylaw in write which do not appear in  order to support it so here will I presume a common consent of the trustee and  parishioner to lie aside that custom and will not throw that imputation upon  all the election make in this parish since that time and on the several  archbishop who have induct since as be invalid and contrary to that trust for  that I must say if I say this election be void for want of these assistant and  indeed very unnecessary be it to have they nor do it appear to have arise from  the opinion of Lord Bacon but by common consent and may be lie aside by  consent of which this long usage be evidence the next objection be from the  nature of the thing that what be do then be no election and it do not appear  that it be the evidence result only to be a meeting agree to he have by these  twelve include their proxy to confirm those vote give before not to consider  of new candidate and to go to a fair regular election but by take advantage of  the death of that trustee and it have not the nature quality or appearance of  a election but suppose it have the next objection be that there be not  sufficient notice of this meeting to which two answer be give that none be  necessary and next that if it be there be sufficient I be clear of opinion  that in order to a election under this constitution and trust notice of the  meeting for election be necessary from the nature of a election which must be  free and at which all person who have a right to appear ought to have a  opportunity to be present to effectuate the end of it it be so in all election  in corporate body whether to be make by the corporation at large or by select  number unless where a election be to be at a charterday fix a particular day  for there ever member be bind to take notice of that day but if no charterday  notice must be give and that whether the person who be to meet and act be all  on a par and of equal authority or whether there be a preside person or not it  must be give either a special notice or a general establish by usage it be not  material which for if it be such a act as amount to notice it be sufficient it  can be say the major part of these twentyfour can have meet where they please  and go to a election and bind the rest the major part may meet indeed and bind  the whole but not without notice at any time or place for the consequence then  may be that thirteen may meet and seven of those thirteen will bind the whole  twentyfour but it be say that by this decree there be no direction concern  notice no person who particular duty be vesey senior to give it which vesey  senior er p be true and for that a case in carter be cite but it be not to be  compare to the case of a condition which stand on a different foundation for  wherever there be a condition in a will or settlement it be a quality of the  right of which the person take under it be bind to take notice it be true that  a case may be put in which they may differ and some be for meeting at one time  and place and other at another I think those trustee who first give notice  shall take place and it be hard to suppose their notice shall be give at the  same instant it be proper compare to a arbitration suppose a reference to five  arbitrator the major part of who be to meet and determine they may meet and  bind the rest but that must be upon the other have a opportunity to meet yet  in that case all these objection arise none have more authority to give notice  than the other the first notice shall take place but the law require it shall  be give and several case have be before this court where such a election of  minister or for any other purpose be vest in a number of trustee it be always  require next the evidence insist on of a sufficient notice take in its far  extent be not sufficient the law presume person who meet to elect to act  reasonable and that the reason and argument offer by one will influence though  other therefore the not give a opportunity to one to meet avoid the election  as have be frequent determine other candidate may be propose which ought to  have be take into consideration and the majority of the whole number may have  agree therein for I be not to presume they all intend to adhere to their  former opinion another objection which deserve consideration as I may be  oblige to give some direction about it be as to the proxy first that by law no  proxy ought to be admit to vote next that if they ought there be not a  sufficient number to give Scott a majority by make up the number twelve for  that one of the proxy vote be void as the person who give he a letter of  attorney appear himself there be no evidence that proxy be admit before in  this election but the trustee agree among themselves to vote by proxy and if  it rest on that and they have meet regular they may I doubt not have make  proxy to sign the presentation for it be true that a trustee who have a legal  estate vest in he may make a attorney to do legal act and I shall have be  unwilling to avoid the election upon that head if it have be in pursuance of  that agreement but it be not so here be a personal trust the decree have  direct the election shall be by the trustee or the major part if then the  trust must be execute by the major part which require judgement there be no  instance where a trustee be allow to make a proxy to vote in a personal trust  of vesey senior this kind the trustee be themselves to judge of the  qualification of the candidate and can not delegate that judgement to other  but ought to exercise it themselves then as to the next I doubt whether that  proxy do subsist to give a vote and shall have think it be determine by the  party meeting but it be not necessary to give a opinion about that I think  these proxy so far from be the better for the name of the particular person  for who they be to vote be give they be the worse for it the trustee who do so  determine himself without hear his brother trustee on these reason the  election of Scott be not to be support consequent that bill must be dismiss  absolute as to the information that be not to be dismiss whether what be pray  be proper pray or not for though the particular relief pray be wrong the  information by the attorneygeneral be not to be dismiss if that charity want  any direction see attorneygeneral v Parker Ves sen then it pray the establish  the popular election of kirkshaw which I can do be contrary to the sense of  Lord Bacon decree which be that for the more orderly and peaceable election it  shall be in this manner the cure be great and the parish large point out the  reason of vest the election in a particular number and direct that the trust  shall be keep fill up this institution be mere to avoid a presentation at  large then a court of equity will not say that beneficiary and trust shall  present contrary to this trust nor unless compel to it by a plain absolute  right establish a popular election of a minister in this large parish which be  the worst way of nominate and what all court shall avoid if possible there be  no ground at least in a court of equity to say there be a devolution upon the  parish at large my opinion then be to do what the trustee shall have do to  direct the number of trustee to be fill up proper and then to go to election  agreeable to the cause of the attorneygeneral at the relation of Kinver parish  in Staffordshire v Foley bro p c octavo edit sub nom Foley v Att gentleman  vesey senior er p in the house of lord in which I be of counsel Foley have  from the heir of the survive trustee get a conveyance to himself of the term  the question be whether the advowson of the parish be not in trust for the  parishioner and it be so hold by sir Joseph Jekyl and by Lord Macclesfield on  a rehear the court take it that by the extinction of the trust there be a  devolution to the parish and direct a election by the parishioner which be  have as popular election be with great confusion there be after that election  a appeal to the lord December who reverse both decree and be of opinion that  though it be original a trust for the parish a absolute power be vest in the  trustee of nominate such a minister as they or the major part shall think fit  in order to avoid the inconvenience of a popular election and will not suffer  upon the notion of a result trust that those inconvenience shall arise vesey  senior again declare that the surrender to Foley be a breach of trust and  therefore the old term be merge in the inheritance a new term shall be create  and vest in thirteen now trustee to be approve of by the court who shall go to  the election of a minister this be to avoid the inconvenience this parish be  now run into it be admit throughout that it be a purchase by the parish by  contribution as it be in this and though all the trustee be extinct yet to  preserve the intent the lord give that direction that be a very strong case  and a very reasonable and right one and the reason of it fall in with this  though this be rather strong as the decree provide for the continuance of the  trustee which be not so there the election of kirkshaw therefore also be void  and the information so far as it pray that ought also to be dismiss as to the  remain regulation first as to the assistant preacher I see no reason for they  next as to a direction for a subsequent election I will direct two meeting of  the trustee the first to fill up the whole number to twentyfive and to appoint  a subsequent meeting and give notice thereof in write to all the trustee if I  make a order that the minister shall read such notice after prayer I can  compel he to do it hereafter therefore for the more regular election the  trustee name first in such deed of trust shall within fourteen day after  avoidance send such notice to every one of the rest in the argument for  kirkshaw be cite attorneygeneral v Davy January atk where three person be to  choose a chaplain for Sandford near Crediton the question be whether two can  nominate without all concur and that his lordship hold in general the three  shall concur but the usage may be different that though it shall come out that  the choice by two may be good on the foot of the usage yet the three have a  right to be present must have notice which he do not appear to have have in  the present case there be a appeal to the house of lord from this decree which  be affirm by consent and February it be move to make the judgement of the lord  a stand order of this court Lord chancellor say it be necessary to do so where  the lord vary or reverse a decree of this court because it be to be carry  vesey senior into execution here but he never know it so draw up when the  decree be affirm by consent and desire the register to see if he can find a  precedent of that kind and if so to draw it up in that manner