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![handle is hein.slavery/ssactsengr0731 and id is 1 raw text is: TULK V. HTOULDITCH
how many of the Purposes, where the Defendant was employed either by the express
Authority of the Corporation, or by Smythies, as his Client, were corporate, or not :
they appear to me much nearer that Description than many Purposes, to which
Corporate Property has been actually applied: but my Judgment goes upon this.
Though Courts of Equity have laid down, as a Principle, upon which they ought
to act, that Persons, seeking Relief, should be prompt in their Application, and
should not deal as if they did not mean to make any Application for Relief in Equity,
suffering their Opponents to lose their Remedies against other Parties, I do not put
ray Judgment upon that Principle. It would be difficult to maintain, though the
Court would struggle, as far as it could judicially, that, as the Defendant has lost
his Remedy by the Death of Smythies, and the Dispersion, if I may use that Expres-
sion, of the select Body, therefore he can in Equity have the Benefit of that Secu-
[247]-rity, which is not a valid Security in Law and Equity : whether that Benefit
could be taken from him by a Court of Equity is a different Consideration.
My Opinion upon this Case is, that the subsequent Transactions, which took
place between these Parties, bound the Corporation at large. Their Constitution
is this. The select Body have at least a Right to bind the Corporation by the Use
of the Seal in Matters, as to which the Corporation at large could bind itself. Without
detailing the Circumstances from the first Moment of this Demand, all the Corre-
spondence upon the Part of the Town Clerk, which I take to be the Correspondence
of both the select Body and the Corporation, all the Terms proposed as to Part-
payment, &c., it is clear, that a Corporation may submit to Arbitration. If the
Matter submitted can in no fair Sense be stated as Matter of Controversy, in which
the Corporation could deal, such that a fair Consideration could view as connected
with Corporate Purposes, I do not say, that such a Submission would bind : but,
if it may be represented as a fair Question, whether corporate, or not, the select
Body, being entitled to act, may submit that to Arbitration.
This was submitted to Arbitration ; and there is not a Trace in that Trans-
action of any Inattention, or Want of due Attention, to the Interest of the Corpora-
tion at large. The select Body must, it is true, be considered in one Sense as the
same Body, whose Acts are brought in question ; but in another Sense they are
quite a different Body. Some of them are not the Individuals, whose Acts are
brought in question ; and upon Examination my Conclusion is, that they did act
as Persons exerting their best Attention for the Corporation at large. Not a Point
was brought before the Arbitrator otherwise than as it would have been by an Agent,
having no other View [248] than the Advantage of his Principal. The Award
therefore is binding at Law ; and was so conducted as to the Interests of the Corpora-
tion, that, unless bound to say, the Purposes, to which the Money was applied, can
in no Sense be considered Corporate Purposes, I ought not to shake that Award.
Upon these Grounds I cannot give the Corporation the Relief, prayed by this
Bill. The Costs of the Issues necessarily follow the Event ; and this Bill imputing
Fraud, when it is impossible that the Security could be cut down except upon the
Principle of its Invalidity in Law or Equity, I should not do Justice in this particular
Case, unless I dismissed the Bill with Costs.
(1) 1 Comm. 4.80, 481. Mr. J. Blackstone and Mr. Christian, in their Notes to
the subsequent Editions, distinguish the Power of the Court of King's Bench upon
Complaint to prevent and punish Injustice in Civil Corporations from visitatorial
Power, as not only liable to Reversal by Writ of Error, but also wanting an essential
Ingredient, the Discretion voluntarily to regulate and superintend.
TULK v. HOULDITCI. Nov. 23, 26, 1810; Jan. 13, 1813.
Legacy, reciting the Probability, that The Legatee was not living, upon express
Condition, that he shall return to England and personally claim of the Executrix
or in the Church Porch : if he shall not so claim within Seven Years, to be presumed
dead, and the Legacy to fall into th3 Residue. The Legatee not having returned,
and dying abroad within Seven Years, the Legacy was held not due; the Existence
of the Legatee, though appearing otherwise, being to be proved by the particular
Means prescribed; and therefore not within the Cases from the Civil Law, where,
C. xv.-4
1 V. & B. 247.](ViewImageLocal?handle=hein.slavery/ssactsengr0731&div=1&collection=&method=preview&ext=.png&size=3)