PU _ _ ticlpltlon in hockey activities.

-. .-

lvlt: ~ L HARIUI It IUWN (BUARUIAN

A and (Notices

Registration

Final Service tlf Week 0f Prayer

The fifth and final service of tlte Universal-Week-of-prayer series in Charlottetown was held last night 111 trinity United ciiiureii before a congregation which filled every e,- vallable seat.

The service was conducted by the llev T, E. MacLennan. assisted by the Rev. H. C. Rice who read the sizr.» ture Lesson. The Rev. G. Lai- yle Webster and the Rev. I. J. Levy both led in prayer.

‘the Rev. Ma r Fowlovv of St. Paul's and the ev. _M. D. Dlunbar of t.he Central Christian Church wei"e unable to attend.

The niuslc for the service was under the direction of the church olliaiiist. ProiessorKendall, and in- cluded the choral anthem. "God

Another Group llus joined the Assembly of Registered Troops on the Island. .We understand iilat| the Third (Kirk) Gl"oup forwarded their Registration Documents to Dominion Headquarters sometime during this week. This brings the number of Officially recognized Troops on the Island up to two; the Salvation Arnlv 'I‘roop and (h;- Kirk Troop and Pack. '

Apparently some Troops don't: want to Register this year neculise it was fouild that Troops who rlid not pav their F‘.:~c,istl"ation Fct- last .\"‘i"' c-"Wvctl lb" same privileges "l STiIITI-“J! as those who did and this ycai" some leaders \von.crcd W11)’ thcv should pay this year for other Troops‘ enjoyment of Of- ficial Recognition.

I’. L's Cours¢

The Official Bronze Course being given y SL-l. ‘Ster- ling Vlalkci" and A. m Jimmy‘ Trainer for Advanced Training; in Patrol Leadership will begin this Tuesday ('\'Ellll‘l_‘.{, The first Session will be held at Trinity Troops meeting place.

The Charlottetown Patrol Leild- ers attending this course with their Group Numbers are as follows: Wendell Barrett (7th). Don Call- beck (8th), Paul Cudnlore (7th), Maurice DeCcste (1st), Stan Dov/n (9th), Jimmy Forrcll (3rd), David Jardine (3rd), Philip Jar- dine (3rd), Dewar Lartcl" (9th) Ralph MacPhcrson (8th). Wt-ndcll MacKinnon (8th), Eri Mullins (lsi), George Scantlebury (7th), David Wood (7th).

The Elgthth (Trinity) Troop

Arrowhead.

Note: The following news was hzviilcd in by Carmoli Thompson. who has recently been appointed Trnnp Leader of Trinity Troop.

The first meeting of ‘Trinity Troop in the new year was hcld on Jail. 4th., when three new Pa- trol Leaders were appointed. name- ly Donald Callbeck, Ralph Mac- Plterson and Wendell MacKmnon.

'I'l1e Troop was honored by a visit from Red Pine who led in l hearty singsomz.

A Relay Race among the three Patrols was won by Ralph Mac- Phcrson's Bulldog Patrol, but not without considerable effort.

A drive is being made to enlist new‘ recruits in order to bring this Troop up to its original strength.

‘The Third (Kirk) Troop

At the regular Monday meeting of the Kirk Troop, George Burnett and Babs Fitzgerald. former mem- bers of the Kirk Group. nzifd a Visit and commented on the pm- sress. the Troop has made ln var- ious activities.

Sc ‘Murray MacClenaghan was

t Clllrge of the Troop‘; par-

The Eighth (Trinity) Cub Puck An invitation ls extended to all hoys of Cub age (8 to 12), who lug-long i0 Trinity United Church. to attend an organizational meet- iniz in lhr- Social Hall, Jan. 17th. at 6.30 p. m. ’ A Cub Pack ls to be formr-cl uri- der the capable and experienced leadership of Miss Grace Diamond, Wllh has hc-cn acting Lady (‘ub- master wilh St. Paul's Pack, Miss Bertha Storc_v_ the Lolly Culimas- icr of thi- Kirk Pack, Ml". Gordon Farrell. lllc Troop L(‘ll(l('l‘ of Th1.- Kirk Troop and l\{r. Walter Con-

rod.

Report of Joint Ila-cling

The Joint hit-cling nf the Dis- trict Council and the Charlotte- town SL‘0iil(‘l'S' Clul) was hcl'l Thursday evening in thc trifle of Jill‘, Edwin C. ilfilllkllilli‘, Th.“ lol- lnwlng riiemhcls of the Didlzct: Council vrcri-i prcwnl: Mr. E. C. 7".'l'il!)l‘.l" and l‘.'l"". P R. McCor- ick, and lhc [tlllf)\‘.‘!ll' mcmbrrs of the S"0ll.ll‘l‘><' Cllih: (Fcorgc An- tltmsc‘. Pol: c'lt'll’lllll‘i‘_ Frank Cos- tello, Grfll!‘ Dnniontl, Roy Elzc- " Fri: ‘; Gallant, Jack Mc- ur- illiarDonnlrl, Stan

- them.”

is a Spirit."

The Rev. T. H, B. Somers preach- ed the sermon, taking as ii.:s text, the ninth verse of the sixth chapter of St, Jtltllll.

In part Mr. Somers said: “T we ourselves. taken one by om..- rct amount to much, is true; but the ideas we can stand for amount to a great deal. A world organized for peace: frcefrom the awful curse of clnss- distinction and racial pre- ludices: a world moving out to a dity of co-operation for the good of all- such ideas as these are here. They are here; tlicy have started; Ls" “c on ti“? "so": and tbsv constitute manknds richest hcpe. To say simply that their realizat- ion depends on a vast world organ lzation, will not do. 0f course. their realr/aiion does depend on that, but that, in turn, depends on enonah people like you and me ~ordlnary. average folk-who dceoly, tirelessly. and courageously, helieve in tlhose ideas and stand for

Dissenting J udgement-

(Continued from Page l)

tile suit of Ada L. Smallwood. complainant, versus Ada L. Small- wood in hcr capacity of adminis- tratrix of the estate of the lute Vivian Smullwood. Iii her suit the complainant asked that the estate of the late Vivian Small- wood be brought in and adminis- tered under the direction of the Court of Chancery. She, then:- fore, called upon all creditors of the into Vivian Smailwood, or any claiming interest in the estate, to come in by a certain date and prove their claims before the Master of the Rolls.

Among the claims entered was one from the People's Cemetery Company, prcscnlczl through the Attorney-General, and upon \Vlllt‘ll Ml". Justice McGuiuan rendered judgment on Oct. l8. The ludc- ment was appealed by the Attor- nrgv-General and arguments were liearrl in November by the Chicf Justice and Mr. Justice Arsenault.

Dissenting Judgment

Following l5 the text of the dis-. ' judgment delivered bl! Chief Justice Campbell: Tm; appeal is taken by the At- torney-Generai, for himself and the Provincial Secretary. mm) 34 Judgment of the Master of the Rolls disallowing a claim made by the Appellant in the course of a suit. for administration of the es- tate of the late Vivian C. Small- lvood, It appears that summary proceedings were first commenced for taking an account of the debts and liabilities affecting the estate under Part. VIII of tiie_ Chancery Act; later, on the makin! of an order for administering the_es- tats, the summary proceedings were consolidated with the pro-l ceedings in the suit for adminis- tration, under the provisions of Section 107. _ The English practice respecting the taking of such accounts re-‘ quires (O. 55. r. 48) that each" claimant must send. in advance 0ft the time fixed for adjudicating on| the claims. the name and address of such claimant, and the full, particulars of his claim. Although] our own rules contain no such specific provision. it is one which, ins been iolloyved in practice. and which should be regularly adhered to A Court of Appeal. in particu- lar, is at a greet. disadvantage in not [having before it anytliinlt in the nature of a statement of the particulars of the claim or of the i". ‘cl sought. I might further m-i ti ' - that. in the case of a com- plicated and controversial claim stish as the present. it would be prefeixible fci the parties to seek" a fuller inquiry of the claim the first instance by tray‘ of action. m the direction of an issue. or the stating of a special case.

Claim

Nature 0t

a MllrMillzlit, H'-l"l'_v 1m Tl'i'llll'll' nnrl StrrLiig

In lllp mall-l" of tllc Scout Toy

Sllol). it was fcll that the {vuhlic ahould it...» lr-cn more fully in- fo.m~ll as to lvhal was (‘lrllio with flip tors ll)" Scouts fixed up, A Commit - ionslstlng of Stan Mc- lonis, - l‘ Diamond, Slcrling Walker, l-lnrrv Pineau and one member of the District Council (rel. to he apnoiiitnil), was set un to take care of The Toy Shop nr-xt year. ' ln reference to Bsems-Cililrle Week, it. was agreed to (Io-operate with the Guide: on all srtitahle activities like Church Paradm Md Concerts.

The Financial Report on stool.

ay was given hy the C. S .

,,easurer, Harry Pineau, and whit!) j 1, profits were higher this year cthan last, lt was po nted out that reviolls years were tlll more sue» ccssful. It was also pblnhi out. ‘that Smls, A.Sm’s, Cmln Imll Kim's were not authorized to han-

dle Anpie Day as they hail to lustl

your. It was not settled as to who would handle it next year Some references was male to glatratlon. and the Scooters hfl~ i loved that Group Committees ilould show more interest in

regiltered and that tho District Council should see to it itlt Group Committees took an interest in their duties.

a‘ On motion. the meeting adjourn-

Ndw Tent look:

fifty copier of the New Test l: arrived at Headquarter; Fri- , but we understand they went bu very quickly. Fifty copies are _ nly not enough. We could use time: that number.

, . i‘. .~ FLASH! l ' we learn

A: we‘? to preu, I the . Paul's An llcarl Clrurich n c

i ,- y.

In llll‘ absence of any such pro- ctecnngs, this court must extract. ltrcm the materials before it, both the nature of tile claim and the inturc oi the rrmcd" souilht. The‘ iciaim concerns the administration til a number of funds. (alleged to hi‘ short by 335166.75) paid by surl- drv z rtics at sundry tlmcs to the ‘People's Cemetery Company oft Charlottetown. of which the late Mr. Smallwood was secretary-l ‘treasurer and manager for some: years preceding ills death in Nov- ember i043. the said funds being paid to the Company for the per- petual upkeep of plots and monu- ments in the Cemetery. It also "appears that Mr. Smallwood was lfuttcrlv the holder oi about sow. lot the capital stock of the Gem-l letery Company.

The People's Cemetery Company was apparently not a charitable

mganizatlon but. by an amend.

[l l.” if

E. K. TIIUIISTON

, are the liabilities

merit to its Act of Incorporation passed _in 18.3 lChapter 82) the Corporation was authorized "to receive from anv plot holder. owner of other person interested lIi the said Cemetery any sum of money as a capital amount to de- fray in perpetuity out of the in- terest thereot the upkeep of any plot in said cemetery and the monuments thereon."

Section 9 of the same aniendlnk Act provided:

“Phat. the said Corporation and the Officers thereof shall in relation to any moneys so re- ceived be deemed Trustees thereof ‘oi the oumoses afore- said without remuneration or re- ceipt of any profit in relation thereto."

Cemeteries Act ‘

By the Cemeteries Act passed lll i938 (Chapter 5. Sec. 3) it was provided that:

“All moneys received and held or controlled by anv person for the purpose of permanent in- vestment and for the use and a plication of the income there- of) for the rpetual mainten- ince or upkeep of anvnzrave or graves or burying plot in any such cemetery or burying ground shall be held by such D8750?! upon Public Trust. and such person shall be held accountable for the proper and legal ad- ministering thereof to the PTO- vinclai Secretary on behalf‘ of the Governmental this Province and of the persons interested in the legal employment thereof for the perpetual upkeep of mid graves or blots."

The Act clearly applies both to moneys paid before and to moneys paid Miler its was-sins and cues on to require the filing of accounts with the Provincial Secretary. Sec- tion 7 provides a oenaltv for a non-application or mlsapplicatlon of the trust moneys concerned. There would seem to consid- erable doubt as to the validity of Section ‘l but. inlany 0856. the intention of the Legislature in passing it appears to have been to acid to the remedies available against trustees rather than to re- place them.

Neimei- the Cemetery Company nor Mr. Smallwood gave any ac- count m the Provincial Secretary. although requested to do so, nor did Mi". Smallwodd. who armament- l‘. had full control of the man- agement and investment of the funds concerned. left-Vt Bu)’ "- count. of them in the Cemetery Company's books.

And no information has been produced as to whether the funds received are still extant and. if so, in what. iorin. The Appellants 9131111,) s; I extract. it from the materials before the Court. is for an accounting of the funds held by the Cemetery Company for perpetual upkeep of blot-S 811d monuments. and controlled by Vivian C. Smallwood as Mamliier of the Company; and. if the ac- counting so indicates. for the re- instatement. of such funds and reparation for an)! bfeflch 9i trust.

Volcee Disagreement

I am unable to aaree with the conclusion of my brother Arsen- ault that the management of the funds concerned is a mere mat- ter of contract between the Cem- etery Company and the devil-ilk ors of the funds. The Cemeteries Act declares that such funds shall be held upon Public Trust. and the company's i813 amendment declares that both the Corpora- tion and its officers are deemed tlustees thereof. It therefore seems clear to me that such funds" are impressed with the usual at- tributgg of trust-s. rather than be- ing regarded as mere pavmmt! for contemplated services.

Nor does it- appear to me thili the boss sion of general cash as- sets of 2.000 and some other in- definite assets can be regarded as sufficient assurance that a limit.- ed company will b: able to oer- form in perpetuity services for which $3,560.75 was provided by the depositors. In anv case. it seems to be clear that the deposit- ors never contemplated the merg- ing of their funds with the ord- inary assets of the Corporation.

Differences Noted

It. is true that a trust is. in its inception, a form of contract but. when a trust becomes executed by the vesting of the trust property. it develops radical distinctions from ordinary contracts. Not only and remedies for, breach of trust different from the liabilities and remedies for breach of contract but the parties who may enforce or release a trust are entirely different from those who"may enforce a contract.

A contract on the one hand can he enforced or released only by the parties to it: an executed trust. on the other hand. can be en- forced only by a beneficiary. and the creator of the tnist can en- force or release it onlv quo ad beneficiary. Consequently. if the statutes to which I have referred are effective to olace these funds in the category of trusts, none of the trusts affecting any of such funds could be enforced by its depositor except in so far as he himself might happen to be a beneficiary under its terms.

One of the normal incidents of a trust: is that the property ie held for the benefit of persons who are called the beneficiaries or ceetuie que trust. In the case of funds such as these. it is very difficult to determine just. who are the cestuis que truet In any instance. especially after the lapse of con- siderable time from the creation of the fund.

Cue Cited

This verv problem was discussed by North, J.. In Re Dean; Cooper- Dean v. Stevens (1889) 4i Cti. D. 552, page 550:

"It is said that there la no ceatui que trust. who can en- force the trust. and that Court will not recognize a trust unless it t.» capable of being en- forced by someone. I do not. ae- sent to that view."

North. J.. declared that a-leg-

acv in trust for erecting and re-

pairing a monument would be good "although it la difficult to

say who-would be the ceetul que .

trust of the monument." But, he also pointed but thlt "ll t l: not a charitable truet. tm ltistocometouieadwithin the limits fixed b? the 11110

ainst uerpettiltlel it would bl ilegal. .. .. But a

who has been appointed M , Appliance Division Halifax offlce.l Canadian General Electri c '

. Ltmltld. Mr. 'nt'illl‘flt0n

x

C '5 Sam John pofflee in» 1819 III _Wl8 appointed Lem Div- idol Mahler a Hallie: h l

out e certain tum in monument. and‘ the lift of en- othei- ruin in trust to apply the some to ‘" villi that monument in rev-tr. any. or ten veers.

le. to mv ion n perfectly good n». u% I a» at no who

"(will "i 3M Court. to eiif 1" e ll- ' - - Il"‘bfl£iuou oe saia full! me trust must fail becaus. b18119 l5 n0 0M woe can netivery en- lorce it."

Vllidity 0| Trust

T116 Sl-lilll-tb Wiiiei" L nave cited were unuflPH-llv passed to ueai Willi "it V"! two DIDJIJIIS mail- "Qlkli "Y "will. J If. connection with legacies or deposits of this nature. 80th statutes cieaiuy rfiwifmke me vailoity of such trusts. tn 5917-0 of lneir perpetuity, and tlie ._Celnet9ries Act. relieves we question “Who was the cestlii out trust?" by declaring that the funds are not! unon Public Trust and clotlilzia the Provincial bec- IBWIY Willi 00W"; of enforce merit.

As l-o_ tile Attorney-General. the authorities all lppeur to assume that he i5 H Ilroper party to en- force Dllbllv rights and the issue involved is usually wnether parties interested can enforce a oublic right". in the absence o: the At. tnrney-(ieneral.

A8 8X1 OXKIHDIE. in the case of

Boyce v. Piidcllngton Borougn Council. (i903) 2 Ch. 558, an in- lurictlon was sougnt against the erection of a screen on a disused burying ginund. At a late stage of the proceedings, the Attorne . General was added as a olaint f. and Vaughan Williams, L. J., at bare 664, raj-s: "We are now in a position to determine the ques- tion as between the Attorney- Geiieral. ICDXCSEIIUIIR the public. and the Borough Council." I therefore hold that the funds in question were held upon trust and that. the trusts being nubile, the Attorney-General (ex of- ficlo) and the Provincial Secre- tary (by the Cemeteries Act) are proper ‘parties to seek enforce- ment of the provisions of the trusts.

Liability Of Estate

The more difficult question re- mains as to the liability of the estate of Vivian C. Smallwoodfor alleged breaches of those trusts. Ordinarily, the trustee is the 11er- son in whom the property or es- tate of the trust has been vested and he alone is llable~ for a breach of trust. The trustee's agent OI‘ officer may incur liabil- ity to the trustee. but he ls not ordinarily regarded as a trustee or held liable as such to the cestul que trust

Under certain circumstances. however. which it l5 not necessary to consider here in detallutzhe of- ficer or agent of the trustee may himself become a constructive trustee d_e son tort. ‘The law on this subject ls ner- haps beat expressed by Romllly. M. R-. in I-Iardv v. Calcy (i864) 38 Beaven, at page 367. where he

says: . "It is said that. I cannot dir- ect an account against Mr. Galloway. because he is only the solicitor of the trustee, and that I have held iii Maw v. Pearson that the ccstuis que trust must. get it through their trustee. I have always so held, but I think the principle does not. imply here. Mr. Galloway has acted otherwise than as solicitor. he has taken upon himself the performance of the trust. In April. 1881, he received 400 l. trust moneys. which he ought: to have divided between the cestliis que trust: instead that. he paid it. into his private bankers, and not into the Hull bank as he had been ordered. He then became a trustee of that monev for the persons en- titled i-Ie draws seven cheques upon it to answer his own Dur- poses to the amount of about: 1'10 1., and 232 1. is lost by the bankruptcy of his bankers in June. 1861. After that he re- pays the cestuls que trust the 170 1. which he had drawn out: but why did he not pay the whole to them at. once? It was his dutv to do so. and he had undertaken to do so. Inst/Bad 0f this. he takes the money for his cum purposes. and thereby be- came liable to make it Z0011 them to whom it belonlzi." Commonly. as Romlily. M. R. indicates. such an additional con- gtructive trusteeshlp arises only where the agent. or officer of the trustee has lzone beyond the flinc- tions of an agent or officer and m; “taken linen himself the D61‘- formance of the trust."

Trusteeship

The Cemeteries Act. Section 2 (a) defines "person" as infill"!- lng owners or managers of cem- eteries or burylnlz grounds 88¢- tion 9 of the Comoenys 091i; amendment has the clear effect o constituting the officers as addi- tional trustees whether. or not. Lhgy have taken upon themselves the performance of the trust. or been parties to a breach of it. such a provision ls no doubt very broad. and it ls berhaoi difficult to fix any definite limit to its ap- plication. The actual trusteeshil) normally continues ‘only dull"!!- Lhg term oi’ office. and. oartlw- larly as the statute of limitations does not apply to trusts, it may be considered excessively burdensome that any officer of a combafl)’ holding such funds might be held liable to accounting at any tlml! in the future. In practice. how- ever. such officera who leave a substantially accurate account at the end of their term of office. and who are not shown to have been partleg to a breach of t/rust. will be sufficiently protected by the rule that trustees are entitled to their coats of accounting unless ggg|gjgngd by their own neglect of misfeullnee.