case Mr lad in behalf of himself and other the orphan and creditor of the city  of London plaintiff the mayor commonalty and citizen of London defendant in  court Lord chancellor sir Robert Raymond chief just of b r the master of the  roll Mr lutwych for the plaintiff by the of W and m ch a perpetual fund be  provide for the benefit of the orphan and the other creditor of the city of  London mosely report er p the preamble of which act show that the city be  considerable more indebt to the orphan and other person than they be able to  pay wherefore the parliament to give they their assistance to pay the say debt  enable they to raise a perpetual fund for the payment of interest for the say  debt at four per cent per annum the legal interest be at that time six per  cent and that all the principal and interest due to Christmas shall be compute  and cast into one sum and this fund be to be make up of several yearly sum  which be to be raise by virtue of this act the clear annual sum of pound a  year be charge on the land and revenue of the city pound per annum be to be  raise out of the personal estate of the citizen pound a year be reserve on the  lease for twentyone year of the convex lamp and after the determination of  that lease all the profit of the public light be to be appropriate to mosely  report these use two shilling and sixpence be to be pay on the bind of a  apprentice and five shilling on his admission to his freedom and fourpence per  tun be to be pay on all wine import into London after the that of June  fourpence for meetage of coal and culm sell by the chaldron and after the that  of September sixpence more per chaldron for fifty year and for coal sell by  the tun sixpence per tun from the say that of September for fifty year and  after the say imposition of sixpence per chaldron and tun be determine all the  revenue of the city be to stand charge with the further sum of pound a year  from the that of June to the annual fund be every year deficient but since  that time it have be more than enough to pay the annual interest of pound per  cent by the coal duty bring in more than be imagine so that there remain now  in the chamber of London about pound and the only question be whether this  overplus shall go to the city of London or whether it shall be apply to make  good the deficiency of former year and I be surprise the city shall make this  a question consider they have spend the money of the orphan and their other  creditor and can only pay they by way of composition or how they can pretend  that the fund be only answerable for so much of the pound per cent as it will  yield yearly and that if it yield less the orphan must hear the loss but if  more that they be to have the benefit the act recite this to be a composition  and establish a fund for the annual payment of pound per cent interest and so  proportionable for a great or lesser sum and all the money to be raise by  virtue of this act be to be appropriate to this use and no other book of the  receipt and disbursement be to be keep and great penalty be lie on the officer  who shall divert or misapply any of the say sum as the whole be to be  appropriate what room be there for this question which be further clear up by  the nature of the fund great part whereof be casual some part indeed be  certain as the pound a year suppose the city revenue shall one year fall short  of pay this sum shall not the arrear be make up in subsequent year if the  revenue in the follow year exceed that sum they may as well say our land last  year yield but pound this year pound and yet the deficiency of the last year  shall not be make up our case appear plain on the bare state of it the act  give the orphan a power to assign their share which be do in this manner they  assign all that be due and Payable to they or that shall be due and Payable to  they by virtue of this act therefore since the whole and every clause of the  act show that that e whole money be to be appropriate to this use there can be  no doubt but that the surpluse must be apply to make good the former  deficiency mosely report Mr Willis the only question in this cause be whether  there be for several year great deficiency in this fund they shall be make  good out of the surpluse of succeed year and if the word be doubtful the act  ought to have such a construction put upon it as will be just and reasonable  but there can be no doubt even as to the word it must be admit that the city  be great indebt when the act be make that interest at that time be more than  pound per cent that this act be great beneficial to the city and the only  justice in low the interest be that this be certain will be as good as the  common interest of pound per cent which be uncertain whereas if the interest  be to arise only as the fund produce more or less it will be a very unfair  composition but the word be plain with we and all the clause of the act clear  show that if there be any deficiency it be to be make up by the first overplus  the design of the act be to give annuity of pound per cent for ever and to  create a perpetual fund for the payment of they now if the deficiency be not  to be make up how can the annuity be say to be perpetual in each clause which  mention the particular sum of which this fund be to consist they be say mosely  report er p to be appropriate for ever to this purpose appropriate signify to  be put to that use and no other so that if there be a general surplus though  there be enough to pay the whole interest every year the city can apply it to  no other use without a act of parliament for subsequent deficiency may happen  and if every sum be appropriate how can the surplus not be appropriate there  be but one instance where the city be at liberty to use any of this money  which plain show they can in any other yet even there it be the intention of  the act that any deficiency shall be make good they have by S a power to apply  pound a year out of this fund for seven year towards the expense of the  government of the city but the clause go on and say that if any deficiency  shall happen the city be to repay the money or so much thereof as shall be  necessary to make good the say deficiency and all the revenue be make  Chargeable here the design of the act be that there shall be no deficiency the  first seven year how then do it appear they intend there shall be any  afterward and by the seventeenth clause of the act the city be empower to  receive such orphan money as executor shall lodge with they and with the money  to pay off orphan who be above the age of twentyone year what be due to they  for principal and interest why shall they that be to be pay off be in a better  condition than they that continue in this act must be construe as other  parliamentary fund be that where a perpetual annuity be grant and a perpetual  fund for the payment of it the fund be to be consider as a mosely report  debtor and the annuity as creditor and the arrear be likewise to be look upon  as creditor on the fund and then there can proper be a surplus till those  arrear be pay Mr mead by S of this act it appear that the debt of the city be  extinguish and the corporation discharge and the compensation give to the  creditor be a perpetual annual interest of pound per cent the nature of this  fund make the case strong the payment by S be to be make twice a year at saint  Thomas and saint John the baptist day which be in favour of the orphan that  they shall not stay till the four per cent be raise but they be to have half  yearly divide among they what be raise and by this act the city be make  receiver of several branch of this fund now it will be very odd if by their  wilful neglect of not receive sufficient one year and by their receive more  than enough another year they shall be capable of make a advantage of the  surplus and though it be provide that the yearly rend and payment shall be  apply for the payment of the say annual sum of pound or to so much thereof  only as the say money appoint to be raise shall yearly amount unto to satisfy  and pay the meaning of this clause be only to prevent neglect of the payment  of the annuity or so much of it as the fund will annual raise and not to  prevent the deficiency of any one year be make good by the surpluse of another  Mr attorneygeneral for the defendant the mayor and commonalty by this act be  trustee for the orphan and be also trustee for the city and therefore if any  doubt arise on this act it be proper for they to submit it to your lordship  judgement the single question be as to the overplusses since whether they  ought to be apply for the benefit of the city or to make good the deficiency  of former year and this will depend on the pen of this particular act  notwithstanding what have be say of parliamentary fund and the word  appropriate and arise on the that clause all the rend c shall for ever be  apply for the payment of the annual sum of pound per cent c or to so much  thereof only as the money shall yearly amount to to satisfy and pay towards  the interest to the say orphan and creditor equal in proportion to their  respective interest the natural construction of this clause be that if the  fund produce pound per cent annual it be to be pay if it do not no more be to  be pay than it do produce and if this be not the construction to what purpose  be the word only the legislature may think this fund will general produce the  pound per cent annual and that such a construction as they contend for may  occasion long and intricate account to divide a surplus at such a distance  mosely report of time among so many person interest and therefore pen this  clause to avoid that inconvenience as to the clause which empower the city to  take out pound a year for the first seven year if our construction be right  their inference be not good for the city by this clause be only to make good  such a deficiency as shall be occasion by the take out this money and if what  they contend for have be the design of the act it will have be say as express  that the city shall make good the deficiency out of the surpluse as it have  say in the other case that they shall make good those that arise by their take  out the pound a year mosely report er p Mr solicitor general this question  depend on that clause mention by Mr attorneygeneral which appoint how the  money shall be apply and suppose there may be a deficiency by this clause the  money be to be apply for the payment of the per cent but the act foresee a  deficiency from the uncertainty of the fund have provide in case of that  deficiency by the subsequent word or to so much c and they be not put in bare  that the city may not postpone the payment till sufficient be raise for the  payment of pound per cent for then such word will have be make use of and if  the act have make no provision after by this clause they be only to have pound  per cent if the fund will raise it if not what it will raise and the direct  contrary follow from that clause whereby the city be empower to make use of  pound a year from what the counsel for the plaintiff will infer it be  reasonable what they make use of in that manner shall be replace to the fund  if in several clause the act suppose deficiency and provide for they in one  case and do not in another do it follow that the act design to provide for  they in both case or rather that it design to provide for they only in one by  this act the stock be transferable but the act may suppose it will be transfer  as other stock be by a transfer of the capital and grow dividend and not of  the arrear also as have be practice in the transfer of orphan stock and then  in case the surpluse be to make good the deficiency what difficulty will there  be to find the proprietor in those several year some of the fund be temporary  as there may be a deficiency for some year then a surplus and then a  deficiency as what make a surplus now will make a deficiency hereafter since  the act have not direct what shall be do with the surplus it may design it to  make good the deficiency of subsequent year for in this sense there will not  be any difficulty to find out the creditor but the difficulty in look back  will be insuperable so that they have make but one question of what may be  make two question and if the mosely report surpluse must make good any  deficiency they must remain to answer those of the grow annuity Mr common  sergeant lingard the right of the proprietor arise only from the act and other  clause plain point out what we contend for the pound a year may be take out  whether there be a deficiency or not and be not to be repay unless a  deficiency happen suppose during those seven year the fund be sufficient and  the next year a deficiency happen no part of the pound be to be repay the  seven year be to commence from Michaelmas and the sixpence duty on coal be to  commence from Michaelmas and this power of borrow expire when a fresh duty  arise look as if the act have the city in view and will ease they as to their  particular revenue and they have a right to the benefit of the surplus  occasion by this new duty because when it cease they be to be charge pound a  year further and as the account be to be yearly audit it look as if the act  provide no further than for every year and that every thing at the end of that  time be to be settle Mr fazakerley if the surpluse be to answer the deficiency  in what manner be they to be apply be the arrear or the yearly payment to be  first clear off if the arrear grow great and be first to be pay they will be  only pay and nothing will be leave to satisfy the annual payment suppose there  be a surplus and no deficiency must it lie dead for fear of future deficiency  there be a clause to make good the deficiency only that shall arise by the  city take from the fund the pound a year and therefore the act have a  deficiency also in the clause in dispute direct under consideration and not  make any provision for it be a strong inducement to think it design to supply  no other deficiency master of the roll this be a very plain case and the  defendant rely on one word to subvert the scope of the whole act the design of  the act be to make the creditor some satisfaction but the act have a regard to  the city too as well as to the creditor pound a year be provide out of the  city land the rend of the convex light and the subject in general be charge by  a duty on coal import to be pay by freeman or not this debt affect the whole  real and personal estate of the city and for the honour and carry on the  government of it the act give the city the relief therein mention the act say  that for and towards raise a perpetual fund c and mosely report then come the  eight clause the end of which I think very material though it have not be take  notice of after lie a duty on coal it go on all sum of money as part of the  say fund shall be pay into the receipt of the chamber and be hereby  appropriate for the raise the say fund and apply towards the discharge of the  say debt and mosely report er p then come the clause the defendant rely on  which be a very necessary clause and say that though there be a deficiency  there shall be a payment pro rata the act have before say that all shall be  appropriate and the word only though we can give no account of it be not  sufficient to overturn the tenor of the act but it may be insert for this  reason here be particular branch of the city charge with a rentcharge and the  word may be add to indemnify the city and to prevent their be Accountable for  or their revenue burden with more than annuity of four per cent otherwise I  can account for it as to the twentythird clause that relate to the pound a  year I take it to be very plain that a surplus in any of those year be to make  good a deficiency of the other from the word during the whole seven year and  this will determine the question for as the act plain express itself as to  this case it be a plain indication of the intention of the legislature that it  shall be so in every other it be the common case of a rentcharge on land if  any bad year happen the grantee may distrain for all the arrear in better year  Lord chief justice I be of the same opinion with the master of the roll and  the whole tenor of the act leaves no room for doubt here be a perpetual  provision make for a debt a perpetual fund appropriate to be consider as the  master of the roll say as a rentcharge where all the arrear be to be satisfy  the whole difficulty arise from the word only which be not to control the rest  of the act but I think maybe insert to a good intent here be a annual fund  establish and a annual payment and therefore this word may be add to prevent  any doubt whether the arrear if any or the annual payment shall be first  satisfy and reason and justice be very clear for the plaintiff and there be no  danger of confusion because the account be annual state and the arrear be  always assign with the capital Lord chancellor the plaintiff have no reason to  blame the defendant for lie this case before the court since as trustee they  ought to have the direction of it the surplus that have and may arise from  this fund will be a great ease to the city towards the payment of the pound a  year they be charge mosely report with when the duty on coal expire and the  plaintiff ought to thank the city for their frugal management of these revenue  whereby this overplus be occasion the right arise from the act the meaning of  which take together be that the city be great indebt and insolvent the old  debt be extinguish and a new debt create of interest of four per cent annual  for the old debt for ever for the payment of which pound per annum be charge  on the city land and the other be new duty all which annual payment c be  appropriate to this and no other use if any deficiency it must be submit to  and be to be make up by a surplus if any shall happen hereafter and the word  only be necessary insert otherwise the first due will be first pay and so the  fund of this year will have be apply to the arrear of the year before to  prevent which the interest be direct to be pay annual and this be a direct  plain and easy construction of the act be it therefore decree that the annual  surpluse arise out of the fund for the payment of four per cent interest be to  be apply to make good the deficiency that have be in any precedent year and  the plaintiff and c be to be pay in proportion