purpose, and took the conveyance to such uses as he should appoint. In May, 1839, he appointed the land to the use of trustees, upon trusts, for the establishment of a church and school accordingly. There was doubt whether, with respect to either of these deeds, the provisions of the Mortmain Act had been complied with. In a suit by information and bill, instituted by some of the trustees of the deed of May, 1839, against the remaining trustees, and the minister of the church and a mortgagee, who was also one of the original subscribers to the fund, complaining that the minister of the church had ceased to be qualified to act in that capacity, according to the trusts of the deed, and seeking to enforce the performance of those trusts: Held, first, that, if the deeds were legally invalid for noncompliance with the provisions of the Mortmain Act, the trusts could not be enforced in equity.

Secondly, that the plaintiffs declining to try the legal validity at law, the equities existing between the parties did not enable the Court to interfere. Thirdly, that the suit was not defective for want of parties, on the ground that the original subscribers were not distinctly represented.

A NUMBER of persons associated themselves together in 1838, for the purpose of building a church and school-room, and forming a congregation of Scotch Presbyterians at Woodside, Birkenhead, in Cheshire; and contributions, chiefly in small sums, were made towards effecting the object.

A provisional committee was formed, and subscription lists were opened.

An address was printed and circulated, stating that it was desirable "to have a church and school in connexion with the Church of Scotland, on the Cheshire side of the Mersey, and that the object had been much furthered by the aid and countenance of the Scottish Presbytery of Lancashire, under whose auspices a committee had been formed to take steps for accomplishing the object." The address also announced that F. R. Price, Esq., the lord of the manor, had presented a piece of land, as a site for the intended church; and that subscriptions, to the amount of several hundred pounds, had been obtained, and further contributions were solicited for the object.

Upon the faith of the representations contained in the printed address, other sums of money were contributed by numerous persons, which, together with the sums previously contributed, were received by Mr. John Walker, as the treasurer; and Mr. Price placed at the disposal of the provisional committee, for the purposes expressed in the *address, a piece of land at Birkenhead, which not being considered a fit site, was afterwards sold for 350l. with the privity of Mr. Price, and the proceeds were, with Mr. Price's consent, received by Mr. John Walker, as the treasurer, as an addition to the subscribed fund.

Four only of the contributors (other than Mr. Price) contributed more than 207., namely, Mr. William Walker, and Mr. John Walker, and Mr. Robert Barbour, each of whom contributed 400l., and Mr. James M'Donald, since deceased, contributed 100l., Mr. John Pollock contributed 201., and Messrs. George Badenach, Walter Walker, and Patrick Ross respectively contributed 10l. each, and Mr. Thomas Boyd contributed 51. to the subscribed fund.

The total amount contributed for the above purposes, including the proceeds of the sale of Mr. Price's land, was 1,500l.

In addition to this sum of 1,500l., a further sum was ascertained to be necessary for the full accomplishment of the intended purposes, and it was determined to raise such further sum by mortgage of the new kirk and school.

Mr. William Walker and Mr. John Walker, being builders and members of the Established Church of Scotland, were employed and intrusted to erect the intended new kirk and school.

Several purposed sites being considered undesirable, Mr. William Walker eventually purchased, at the price of 250l., a piece of land in Conway Street, Birkenhead, which was by indentures of lease and release of the 1st and 2nd of December, 1838, duly conveyed to Mr. William Walker to such uses as he should appoint, with remainder to the use of Mr. William Walker in fee.

The price of 250l. was paid out of the funds in the hands of Mr. John Walker; but this was not noticed in any way in the deed.

This deed was attested by one witness only, and was not inrolled in Chancery. The parcel of land purchased by *Mr. William Walker had, on completion of the purchase, been approved by the provisional committee as the site for the intended new kirk and school, and was with that view purchased by Mr. William Walker, and it was shortly afterwards finally adopted for the purpose.

By an indenture, dated the 31st of May, 1839, and made between Mr. William Walker of the one part, and Messrs. John Walker, John Pollock, Thomas Boyd, George Badenach, Patrick Ross, William Walker, and John Barbour of the other part, being the deed of constitution of the new kirk or church and school at Birkenhead, for the purposes of erecting, preserving, and maintaining in all time coming suitable and convenient buildings in Birkenhead aforesaid, for the purpose of worship and service of Almighty God, and the reading and preaching of his most Holy Word, according to the doctrines, forms, usages, and discipline of

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[ *104]

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the Established Church of Scotland, and for instruction and tuition of the young in scriptural knowledge and useful learning, and for other the considerations mentioned, the piece or parcel of land conveyed to Mr. William Walker by the indentures of the 1st and 2nd of December, 1838, and all his interest therein, were assured to the use of the parties thereto of the second part, their heirs and assigns for ever, upon trust, that they and other the trustees, for the time being, of the trust estate, should stand seised of the piece of land and the buildings and premises thereon, to the intent that they should, out of the monies then raised and to be raised for that purpose by voluntary contributions or otherwise, erect thereupon a church or public place of worship, with a session-house and schoolroom and other appropriate and necessary buildings; and should, if they thought fit, appropriate the residue of the same land as a buryingground, and from and immediately after the completion of the buildings, should stand seised of the land, buildings, and premises, upon trust, at all times thereafter, to use and enjoy, and permit to be used and enjoyed, *the same church as and for a place of Divine worship and service, in connexion with and according to the doctrine, forms, usage, and discipline only of the Established Church of Scotland, and for the preaching and expounding of God's most Holy Word, according to the doctrines and tenets of the same Church, as set forth in the Confession of Faith agreed upon by the Assembly of Divines at Westminster, with the assistance of Commissioners from the Church of Scotland approved of by the legal assembly in the year 1647, and ratified by Acts of Parliaments, 1649 and 1690, the worship and service to be conducted by a minister or ministers belonging to and in full communion with the Church of Scotland, to be nominated or chosen and appointed in manner thereinafter mentioned, and by such other minister or ministers, being in communion with the Church, as might be occasionally invited to the assistance of the incumbent minister, or to officiate in case of a vacancy, every such minister to have the free and uninterrupted use of the church for the observance and performance therein of religious worship, and also of the room or buildings appropriated for and intended to be used as the sessionhouse and it was thereby declared, that such person, being a licentiate or minister of the Established Church of Scotland, as should be nominated and chosen by the parties thereto of the second part, should be the first minister of the church: the deed then contained provisoes for filling up any vacancy or avoidance in

the ministry of the church, and other provisions for carrying into effect the purposes of the trusts.

This deed of constitution was executed with the approbation of the provisional committee.

The deed was submitted to, and approved by the Lancashire Scottish Church Presbytery, and it was assented to by the Lancashire Scottish Church Presbytery.

This deed of the 31st of May, 1839, was attested by one *witness only. It was inrolled in Chancery on the 1st of July, 1839.

A deed-poll, dated the 11th of January, 1840, was indorsed upon the deed of the 1st of July, 1839, and was executed by Messrs. William Walker, John Walker, John Pollock, Thomas Boyd, George Badenach, Patrick Ross, and John Barbour. This deed was intended to explain some of the trusts, to which it is not necessary here to refer.

All the trustees accepted the trusts; and the foundation stone of the new kirk was publicly laid on the day of the date of the deed of constitution. The monies contributed were insufficient to defray the total cost of the buildings and the site thereof, and the trustees borrowed the sum of 1,000l., for the purposes of the trust, from Mr. William Waring; and by an indenture of mortgage, dated the 10th of March, 1841, the trustees duly conveyed and assured all the parcel of land comprised in the indenture of the 31st of May, 1839, with the kirk, school-house, and buildings thereon, unto Mr. William Waring, his heirs and assigns, for securing the sum of 1,000l. and interest.

In August, 1840, the church was completed, and the Rev. John Gardner, then a duly-qualified licentiate of the Church of Scotland, and being a licentiate from the Presbytery of Glasgow, was, in pursuance of the trusts of the indenture of the 31st of May, 1839, appointed to the office of minister to the church. Mr. Gardner signed an agreement, expressly submitting to all the terms of the deed of constitution.

About the same time, Mr. William Walker, and other of the trustees, entered into and gave bond to Mr. Gardner, whereby they bound themselves to secure the yearly stipend of 100l. to him.

The church was opened for Divine service in the year 1840, and Mr. Gardner entered on and discharged the duties of his office, as the minister of the church.

In and some time previously to the year 1843, certain ministers and members of the Established Church of Scotland openly

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dissented and separated themselves from that Church, and, repudiating all connexion therewith, formed themselves into a distinct and independent body in Scotland, under the title of the Free Church of Scotland.

In the course of the years 1843 and 1844, Mr. Gardner, and with him nearly all the members of the congregation of the kirk at Birkenhead, openly adhered to the Free Church of Scotland; and thereupon certain proceedings were prosecuted against Mr. Gardner, in respect thereof, before the Presbytery of Glasgow, from which he had obtained his license as a minister; and on the 7th of August, 1844, his license was revoked, and he was deprived of his office and character as a minister and licentiate of the Established Church of Scotland.

The majority of the trustees, and the congregation at large, concurred with Mr. Gardner, who continued to be the minister of the church; but some of the trustees required that the trusts of the 31st of May, 1839, should be adhered to.

On a reference being made to the deeds of the 2nd of December, 1838, and of the 31st of May, 1839, and of the deed thereon indorsed of the 11th of January, 1840, it was apprehended, that inasmuch as the conveyance to Mr. W. Walker was not attested by two witnesses, and was not inrolled in Chancery, and as the deed of the 31st of May, 1839, though inrolled in Chancery, was attested by one witness only, both these deeds were void, for non-compliance with the Mortmain Act; and an attempt was made, upon the assumption that such deeds were void, to assure the church, and school-room, and premises, to such of the trustees as adhered to the Free Church, in exclusion of such of the trustees as adhered to the Established Church.

Accordingly, by an indenture, dated the 23rd of December, *1844, and made between the assignees in bankruptcy of Mr. Arthur A. Dobbs, (the original vendor of the premises to Mr. William Walker), he being then a bankrupt, of the first part, Mr. A. A. Dobbs of the second part, and Messrs. John Walker, John Barbour, and Walter Walker, of the third part, after reciting the contract for purchase in 1838 of the land for the site of the church, and that the 2501. was paid, and that possession was taken, but that no conveyance had been executed of the land, and that the parties of the third part had requested the parties of the first part to execute to them, the parties of the third part, a conveyance of the land and buildings, to enable them to make a legal security thereon for