Page:The English Reports v1 1900.pdf/1131

uncertain fines. Fines are a fair, open, and usual mode of leasing in those cases. Leases in trust are secret, unusual, and suspicious; and the very trust, in such a case as the present, was some evidence of a fraud. The late Provost held the common seal, as a trustee for the purposes of the college; he affixed it to those leases, not for the purposes of that body, but for his own, and to the prejudice of that body, [535] and in so doing committed a breach of his trust. This breach of trust was committed, to make fictitious evidence of a fact which was untrue; namely, the assent of the senior Fellows, who, or a majority of them, with the Provost, give at the board the assent of the body at large. The entry made the same day in the register-book, by the order of the late Provost, and from a draft in his own hand-writing, (though no such entry ought to be made but at a board,) was also for the purpose of introducing fictitious evidence of an untrue fact; namely, that a board was held on that day. This affixing of the seal, reciting the consent, and ordering the entry to be made, were suggestions of untruths, and were to be considered in a Court of Equity as frauds. The evidence of these facts was particularly stated by the bill, and to which the respondents only said, that they were strangers to the transaction; but to support the plea, either as to the discovery or relief, it was apprehended, these frauds should have been denied.

Yet it was said, that the Provost alone could demise; and therefore what had been done as to the college seal was immaterial.

A breach of trust, and other frauds in part of this transaction, if they did not infect the whole, must raise suspicions of the fairness of it, and should induce a Court of Equity to retain the cause, for the purpose of farther investigation. But if those lands were to be considered as part of the college estate, and subject to the statutes of the college, he could not have demised, without having had the assent of his assessors. And though the Provost could have demigod without such assent, yet the assent of the senior Fellows would give weight to these leases before a jury, in considering whether the moiety of the just value was reserved; they would appear on the trial, to have been made with the consent of the whole corporation; the common seal of the corporation was evidence of such consent; and if this evidence might be disproved, yet it did not seem to be just, that the appellant should be laid under that difficulty, and under the necessity of giving before a jury that evidence against him. The seal was prima facie, though fictitious evidence, of a fact that was untrue; and it seemed to be just, that it should be removed out of the appellant's way by a Court of Equity. But if the Provost could alone have made a lease to bind his successors, without the consent of his assessors, he had not made such a lease; he did not appear to have ever intended to make a lease by himself singly. If the consent of the body at large was not necessary to make the leases good, under the act of Charles I. the reciting such consent, was evidence that he did not intend to make a lease under that act; and if the late Provost did not intend to act under that statute, it was not reasonable, that the respondents, standing in his place, should protect themselves under it, on a supposition that the leases were made under the act.

[536] It was also said, that the Provost was to be considered as a sole corporation; and had made these leases under his private seal, which was to be considered as his seal of office.

But as the grant to the Provost and his successors was by act of parliament, it was apprehended, that the successors might take, without resorting to the construction, that the Provost was made by those words, a sole corporation; the intention seems to have been, to make a provision for the head of an old corporation, and not to erect a new one; and the plea said, that the late Provost was seised of the lands in his demesne as of fee, in right of his college, which excluded the notion of a distinct corporation in him, and shewed that the college seal was meant to be relied upon; and though the respondent had pleaded the leases under his private seal also, yet they did not offer to waive the benefit of the college seal, or of the recitals of the consent of the body at large. The Irish act of the 17th and 18th Charles II. directs, that the lands should be settled on the Provost and his successors, in such way and manner as the Lord Lieutenant and his council should direct; and as the Lord Lieutenant and his council never exercised this trust, it was conceived, that it devolved upon a Court of Equity, and raised an equitable jurisdiction in this case. And if the