VOL. YII.] AND PBIV1' COUNCIL.

619

We do no more than lay down a rule of construction, and apply H. h. (E.)

a well-established principle of law to this particular case, and we
1882
hope it may serve as a landmark for the future. GLyN j i ^ g
&Co.
Judgment appealed from affirmed, and appeal EAS T' AND
dismissed with costs. WEST INMA
DOCK Co.
Lords' Journals 1 August 1882.

" Solicitors for appellants: Murray, Hutehins, & Stirling.

Solicitors for respondents: Freshfields & Williams.

[HOUSE OF LOKDS.]

ALFRED KINLOCH . APPELLANT; H.L.(E.)

AND 1882

THE SECRETARY OF STATE FOR INDIA 1 _ a£ioi

IN COUNCIL }RESP(MT- —
Royal Warrant—Booty of War—Grant—Trust or Agency.

The Queen by Royal Warrant " granted " booty of war to the Secretary
of State tor India in Council " in trust" for the officers and men of certain
forces, to be distributed, by the Secretary of State or by any other person he
might appoint, according to certain scales and proportions; any doubts
arising to be determined finally by the Secretary of State or by such persons
to whom he might refer them unless the Queen should otherwise order.
An action having been brought against the Secretary of State for India in
Council by the appellant on behalf of himself and all other persons entitled
under the royal grant to share in the booty, alleging a distribution of part
and possession by the Secretary of State of the residue, and claiming an
account and distribution of the residue:—
Held, affirming the decision of the Court of Appeal, that the warrant did
not transfer the property, or create a trust enforceable by the High Court of
Justice; and that the Secretary of State being merely the agent of the Crown
to distribute the fund the action could not be maintained.

APPEAL from an order of the Court of Appeal.

The appellant having brought an action against the respondent,
a demurrer to the statement of claim was overruled by Hall V.C.,
but on appeal allowed by the Court of Appeal (James, Baggallay,
and Bramwell L.JJ.)
620 HOUSE OF LOEDS [VOL. VII.

H. L. (E.) The allegations in the claim appear in the report of the case
1882 below (1) and in the judgment of Lord Selborne L.O. here.

B- ■ Br Tristram Q.C. and Willis Bund for the appellant:—

OP STATE The Judge of the Admiralty Court to whom it was referred
PORINDIA. under 3 & 4 y. o t G 65 ^ 22 a n d t h e 0 r d e r in Council of the

10th of June 1864 found that certain persons of whom the appel­
lant is one were entitled to share in this booty.
[LOKD SELBOHNE L.C.:—There is no allegation in the state­
ment of claim of the plaintiff's right to share. How does he
claim ?]
As army chaplain, ranking as major. This objection was not
raised below. The Court of Equity has jurisdiction to entertain
such a claim: Brown v. Harris (2); The Tarragona (3); and
Sir Bichard Parker v. Barker (4) in 1769, where prize money
for the capture of a Spanish galleon ,was divided equally between
the British army, the British navy, and the forces of the East
India Company, and Lord Camden held that the troops of the
East India Company were entitled to a decree.
[LORD SELBOENE L.C.:—There does not appear to have been
a royal warrant. The parties may have made some agreement
inter se which a Court of Equity would enforce. I t does not seem
to have any bearing on the present case.]
Alexander v. Duke of Wellington (5) is not against the appellant,
for there the grant was not final as here. The Act which trans­
ferred the Government of India to the Crown, 21 & 22 Vict. c. 106,
enacted by sects 65-68 that the liability to suits should be trans­
ferred from the Company to the Secretary of State for India in
Council. If this booty had been in the hands of the Company
the Court would have compelled them to account and distribute.
Any seaman can sue in the Prize Court for prize. A mandamus
lies to order the Lords of the Treasury to pay an officer's pension,
the Lords having admitted the money to be in their hands: Beg. v.
Lords Commissioners of Treasury (6). The defendant here by
(1) 15 Ch. D. 1. extract (from the Record Office) of the
(2) 13 Ves. 552. bill and decree.
(3) 2 Dod. 487. (5) 2 Russ. & My. 35.
(4) Not reported; but cited from an (6) 4 A . & E . 286, 984.
VOL. VII.] AND PRIVY COUNCIL. 621

demurring admits t h e allegation in t h e claim t h a t h e has t h e H. L. (E.)

money. T h e r e are two classes of royal warrants, one where t h e 1882
person appointed is merely an a g e n t ; t h e other as m t h e present KINLOOH
case where h e is a trustee accountable in equity t o t h e cestui q u e gB0BB"TAEr
0F S T A T E
trust.
_ FOR INDIA.
[They also referred to 2 Will. 4 c. 53 ss. 2, 14, and 1 & 2 Vict. '
c. 2 ss. 2, 12.] '

Graham Hastings Q.C. Macnaghten Q.C. and Alexander Young

for the respondent were not called on.

LOED SELBOENE L.C.:—

My Lords, although this case may be one of public importance
as regards the subject of the order appealed from, yet to my
apprehension the case is one of too little doubt for any argument
to overcome the demurrer to the claim. I say nothing of the some­
what defective manner, to say the least, in which the statement
of claim is framed. The claim is made by the appellant " on
behalf of himself and all other the persons who under the royal
grant of the 10th day of June 1864 are entitled to share in the
Banda and Kirwee Booty ": not shewing how he is himself entitled.
I say nothing upon the point whether there has been such a mis­
carriage as would be fatal to the case. My reason for not dwelling
upon it is that it does not seem to be a point upon which the
judgment turned, either in the Court of first instance or in the
Court of Appeal; and doubtless if that objection had been
seriously urged an opportunity would have been given, and I
think ought to have been given, to the present appellant to amend
his pleading, so as to shew more distinctly the manner in which
he brought himself within the orders in question.
The object of the action was to compel the Secretary of State
for India in Council to account, on the footing of a trust, for
moneys which were alleged to be in his possession under the grant
of the Crown, and to belong to the parties who were entitled to
share in the Banda and Kirwee booty. The real questions, and
I think the only real questions, for your Lordships to determine
are two; first, whether the Secretary of State for India in Council
is properly sued; and secondly, whether there is a trust, as alleged,
622 HOUSE OF LOBDS [VOL. VII.

H. L. (B.) which can be enforced on the Equity side of Her Majesty's High
1882 Court of Justice.
KINLOOH With respect to the Secretary of State for India in Council, I
en re
SECRETARY *' ^y agree with what seems to have been the opinion of the
OP STATE Court of Appeal. He is here sued as a corporation. I t is not
FOR INDIA. . . .. , ,
the individual who now happens to fill that office who is sued,
L.C. ' but it is the officer bearing that description; a remarkable
and special description, derived evidently from s. 65 of 21 & 22
Vict. c. 106; which simply enacted that suits to establish rights,
which if that Act had not'been passed would have belonged to
the East India Company and for which they might have sued,
and again suits to establish claims, which if that Act had not
been passed would have been proper to be made in actions
at law or suits in equity against the East India Company,
might be brought by or against the Secretary of State for India
in Council. The enactment seems to proceed on the same
principle on which iu Banking Acts public officers are authorized
to sue and be sued as representing the persons really entitled or
liable. This is no doubt a very high public officer; and the
designation " in Council" is added, I suppose, in order that all
matters arising out of such suits may be considered not only by
himself individually, but by himself in his Council. Whatever the
reason for that may have been, the enactment is limited as I have
expressed i t ; and this is clearly not a suit brought against him as
representing the late East India Company, or which can by any
possibility be described as a suit which, if the Indian Government
Act had not been passed, might have been brought against the
East India Company. Therefore, so far there seems to be no
ground for suing the Secretary of State for India in Council in the
manner in which he is here sued.
I t is said, and I daresay rightly said, that for some other pur­
poses, under particular Acts of Parliament which define those
purposes, he may be in like manner sued. But it has not been
alleged that any of those Acts of Parliament extend to the subject
matter of this action.
I think that goes a long way to shew that in reality the
power given by the Koyal Warrant has been misconceived, and
that the position of the Secretary of State for India in Council
VOL. Y1L] AND PKIVY COUNCIL. 623

under the Koyal Warrant has also been misconceived. Still it H. L. (E.)
would not be altogether satisfactory to proceed on that ground 1882
alone, (although it might be necessary to do so,) if, it really ap- KINLOOH
peared that the intention of the Crown, in the Order in Council S K O B ^ A B T
and the Warrant which passed from the Crown upon this subject, OP STATE
F 0 R NDIA
i • • i -
was to constitute the person who for the time being might fill
that office of state a trustee in the ordinary sense of the word, ° L.C. me '
liable to account in a Court of Equity to private persons. The
very fact of his not being described in the grant by his personal
name, and not being described as the Secretary of State, but as
" the Secretary of State for India in Council," and " for the time
being," the very fact that the grant is made in that form goes, in
my mind, not a small way to shew, that it could not have been
the intention of the Crown in these documents to constitute a
trust in the manner insisted upon. And when I look at the
documents themselves, that appears to me to be more and more
clear.
The first document, the Order in Council, does not contain any
grant at a l l ; but it recites the military operations by means of
which the booty was captured, and that the Queen " has signified
her gracious pleasure that the property and the proceeds thereof
shall be granted to and distributed amongst the forces concerned
in the operations above referred to, in such manner as may be
hereafter determined." Most assuredly that is not a grant,
although it is an announcement, from which the Crown was not
likely to depart, of an intention to make a grant. It further
recites that a proposal had been made for the consideration of the
Queen as to the manner of distribution and the persons to par­
ticipate, which had been objected to by some of those persons who
thought that they had a moral right to participate in the booty
—that is to say, such a species of moral claim as could exist with­
out an actual grant by the Crown, having regard to the course
usually pursued in similar cases. Then various claims advanced
by different officers to participate are also mentioned, claims which
of course could only be such as men might make upon the bounty
of the Crown in a matter of this kind, and not by any possibility
enforceable in any Court of Justice—such, for example, as the
claim which is expressed in one passage, where it is said that
624 HOUSE OF LOED8 [VOL. VII.

H. L. (E.) " t h e prize agents of t h e force under t h e command of Sir George

1882 W h i t l o c k have preferred a claim t h a t t h e property should be
KINLOOU granted exclusively to t h e force under t h a t officer's command " ;
. sE0B^TABY shewing clearly t h a t all those claims were preliminary to a grant,
OP STATE a n ( j anticipatory of a grant, and n o t founded upon any legal
right.
Lord Selbome, . - , • , ■ >
L.C. Now the existence of those claims (that and nothing else) was
the cause of the Crown availing itself of the power given by 3 & 4
Vict. c. 65 to refer any questions which the Crown might think
fit to refer, " concerning booty of war, or the distribution thereof,
to the judgment of the High Court of Admiralty," who should
have jurisdiction to decide the matters so referred. Then what
did the Queen refer ? " All claims to share in the property
captured," and nothing else—and it appears to me that they were
claims such as I have stated—claims not founded upon a grant
actually made, but claims anticipatory of a grant; and the refer­
ence was to be in aid of the judgment of Her Majesty as to the
persons to whom she should, in the exercise of her royal bounty,
make the contemplated grant. Accordingly those claims, and
nothing else, being referred, on those claims and on nothing else
the judgment of the Court of Admiralty proceeded, which as
between the parties to those claims was no doubt a judgment within
the jurisdiction of that Court by virtue of the reference. It may
be that, if the grant had been made, and the money paid over
and put out of the power of the Crown to deal with in any way,
and if something had been done inconsistent with the grant, any
Court having authority to deal with the matter might be bound to
rectify any wrong done. But that judgment decided nothing about
what funds were to be distributed, or anything of that kind, but
simply who were the persons entitled to share, and in what
proportions they were to share, in whatever might be the subject
of grant.
Then Her Majesty at the end of this Order in Council reserves
expressly to herself " the right to direct the rates or scale of
distribution according to which the property or the proceeds
thereof shall be paid to the several ranks of the force or forces to
•which such property shall be adjudged." Therefore, the only
thing which the Court of Admiralty determines, or is asked to
VOL. VII.] AND PEIVY COUNCIL. , 625
determine, is this, what classes of forces should share, and io what H. L. (E.)
proportions inter se. The grant is to be made by the Crown—it 1882
is not made, and cannot be made, either by the Order in Council KINLOCH
or by the judgment of the Court of Admiralty; and the scale in g "■
which the distribution is to be made amongst the several ranks of OF STATE
the forces to which the property is adjudged is reserved to be
,,i t i ,i r~> LordSelborne,
settled by the Crown. L.C.
Then we come to the warrant; and the warrant recites what
property is intended to be granted, by the description of certain
property captured at and in the occupation of the towns of Banda
and Kirwee on certain dates, and it recites that the property " has
since been duly sold." That is described as the subject of the
grant; and it recites that this property is estimated to be of the
value of-55 lacs, odd, of rupees. Then it goes on to recite the
proceedings prior to, and the determination of, the Court of
Admiralty ; and it then recites the recommendation of the Com­
missioners of the Treasury that some further bounty might be
given to certain officers (which is not material), though the
amount of the bounty to be so given is not fixed. And then
come the words which are relied upon as constituting a trust:—
" Now We do hereby give and grant to Our Secretary of State
for India in Council for the time being " (upon which I have
already made the observations which seem to me pertinent, as
shewing what must have been in the mind of the Crown, namely,
the intention to employ the agency of a high officer of state
rather than to appoint a particular person as trustee) " all the
aforesaid booty mentioned to have been captured at or in the
said towns of Banda and Kirwee, and the proceeds thereof as
aforesaid" (that is the subject, and the only subject granted,)
" in trust for the use of " the persons intended, to whom Dr.
Lushington had adjudged it, "such booty and proceeds to be
distributed by Our Secretary of State for India in Council for the
time being, or by any other person or persons he may appoint,
as follows."
Now the words "in trust for" are quite consistent with, and
indeed are the proper manner of expressing, every species of
trust—a trust not only as regards those matters which are the
proper subjects for an equitable jurisdiction to administer, but
626 HOUSE OP LOKDS . [VOL. VII.

H. L. (E.) as respects h i g h e r matters, such as m i g h t t a k e place between

1882 t h e Crown and public officers discharging, u n d e r t h e directions of
KINLOOH * n e Crown, duties or functions belonging to the prerogative and
SECRETARY ^° * ^ e a u t h ° r i t y of t h e Crown. I n t h e lower sense t h e y are
OP STATE matters within the Jjurisdiction of, and to be administered by, J
the
ron INDIA.
ordinary Courts of Equity ; in the higher sense they are not.
L.C. ' What their sense is here, is the question to be determined, look­
ing at the whole instrument and at its nature and effect. Of its
nature, so far as relates to the person of the agent or trustee, I
have already spoken. As to the manner in which it is done, we
have, no doubt, the persons interested in connection with that
word " trust." The proportions to be given to Lord Clyde and to
others, and the scale according to which the different ranks of
officers and privates and other persons who are to participate are
to receive the booty, are laid down, including the proportions
to the native troops and to non-combatants, such as water carriers
and so on; and the warrant ends thus: " And We are graciously
pleased to order and direct that in case any doubt shall arise in
respect of the distribution of the booty or proceeds hereby granted
as aforesaid, or respecting any claim or demand on the said booty
or proceeds," (not merely doubts but claims, in the largest and
most general words), " t h e same shall be determined by Our
Secretary of State for India in Council for the time being, or by
such person or persons to whom he shall refer the same, which
determination thereupon made shall with all convenient speed be
notified in writing to the Commissioners of Our Treasury; and
the same shall be final and conclusive to all intents and purposes,
unless within three months after the receipt thereof at the office
of the Commissioners of Our Treasury We shall be pleased other­
wise to order; hereby reserving to ourselves to make such other
order therein as to Us shall seem fit."
. To hold that to be a trust which could be taken into the
Chancery Division of the High Court of Justice would be com­
pletely to overturn the whole of that portion of the direction of
the Crown, which in the plainest and most distinct words refers
all possible disputes to the Secretary of State or some delegate
to be appointed by him, and says that his decision shall be final
and conclusive to all intents and purposes, unless within a limited
VOL. VII.] AND PRIVY COUNCIL. 627

time H e r Majesty herself shall otherwise order, which power she H. L. (E.)
reserves to Herself. 1882
I do not at all follow what was said by t h a t very learned and KIKLOOH
able j u d g e , H a l l V.C., in which h e seems to have stated that if gE0BETAItY
t h e Court of Chancery, t h a t is to say t h e Chancery Division, OF STATE
. . . . . . ' F O B INDIA.
assumed the jurisdiction which it was asked to exercise, it might, —-
, A i ' i n i ' . - i / » i J j0r(1 Selbome,
in the course of taking the accounts and administering the iund uv.
(so I understand his Lordship to have meant) refer all questions
as to the distribution, or as to claims and demands on the pro­
perty, to the Secretary of State, holding itself bound by his
decisions unless they should be afterwards reversed by the Queen ;
a sort of mixed jurisdiction which would comprise at once that
of the Equity side of the High Court of Justice, and that of the
Secretary of State for India in Council, as an arbiter without
appeal except to the Queen. All I can say is, that such a thing
has never yet been heard of, and I apprehend that on no possible
principle can it be established. The intention of the Crown, if
the Crown had this power (and by the Act of Parliament the
Crown had the power to direct as it should think fit, how this
distribution should be made), is plain: the intention was to exclude
any such extraneous interference; and in my humble judgment
the Crown has effectually done so.
Then what are the authorities ? I feel it almost unnecessary
to make any remarks upon them. All that I will say is this. In
Alexander v. Duke of Wellington (1) there was a claim between
Messrs. Alexander and Lord Hastings. The trustees, if I am so
to call them, had actually paid the money to Lord Hastings, or
had done what was the same thing, had paid it into Court in a
suit between himself and one of his creditors to be distributed
simply according to the private rights of the parties, between
Lord Hastings and his creditors. With that we have nothing to
do; but the question whether the fund could be put into trust in
this way and administered by the Court of Chancery was deter­
mined upon appeal by Lord Brougham as Lord Chancellor, and
was distinctly determined by him upon the following footing.
Though the trustees had been directed to collect and get in
certain funds, and to prepare a scheme of distribution, which they
(1) 2 Russ. & My. 35.
VOL VIL 3 2U
628 HOUSE OF LORDS [VOL. VII.

H. L. (E.) had done, and though two subsequent warrants of the Crown had
1882 confirmed the distribution made by them, Lord Brougham dis-
KINLOOH tinctly held, that, in order to determine whether they were trustees
or n0
SEOKETAISY * * n s u c n a S 8 n 8 e a s *° introduce the jurisdiction of the
OF STATE Court of Chancery, the instrument making the grant, and nothing
else, was to be looked to, and that the subsequent acts could not
Lord Selborne, . . . , . . ~ n/~ii

L.C. make it a trust to be administered in the Court of Chancery, it

it was not so by virtue of the instrument itself; and, upon the
instrument itself, he said he had no doubt whatever that the
question on the merits was beyond the jurisdiction of the Court.
A previous decision by Lord Eldon in Brown v. Karris (1) was
referred to in the course of the argument. There no doubt
the Crown did grant a fund to trustees in every sense of that
word, the fund being distinctly vested in them, and vested for the
purposes for which they were made trustees; and the power of
the Crown which had made the grant being entirely at an end, the
Court of Chancery might exercise its ordinary jurisdiction; that
cannot be doubted. But the question is, whether this instrument is
of that kind.
Another case which was mentioned has really no bearing at all
upon the matter (2). It was a case in the Prize Court under an
Act of George III., which distinctly provided how prizes should be
dealt with by the Court. No instance has been produced of any
-trust of this sort ever being ndministered by a Court of justice ;
and I do not think that your Lordships will consider it your duty
to make this case the first precedent.
I therefore move your Lordships that the appeal be dismissed
with costs.

LORD O'HAGAN : —

My Lords, I am of the same opinion ; and I should add nothing

to the observations of my noble and learned friend, but that the
case is, in certain aspects, of some public importance.
As to the general jurisdiction, which the appellant asks your
Lordships to exercise, I concur with the Lord Chancellor. A
fund has got into the possession of the Crown, where it remains,
without transfer or creation of trust, or derogation from the royal
(1) 13 Vos. 552. (2) The Tarragona, 2 Dod. 487.
VOL. VH.] AND PEIVY COUNCIL. 629

control over i t ; and a Court of E q u i t y would assume a jurisdiction H. L. (E.)

which was never before assumed by such a Court, if it should 1882
interfere with t h a t fund, u n d e r t h e circumstances and for t h e KINLOOH
reasons which have been pressed on t h e attention of the House. g E0B £ TABT
T h e complications and difficulties of administration which, would ° p STATE
. , FOR INDIA,
attach to any interference of the kind are manifest, and would
make it very inconvenient from considerations of public policy.
Mere inconvenience would not justify the refusal of relief, if the
appellant's claim were sustained by principle or authority; but
in my view, the argument has failed to establish, for it, the
support of either.
In strictness, the appellant has made no case. His own state­
ment merely represents him as a clergyman attached, in some
way, to the army, at a particular time. But, of the nature of his
claim to participate in the booty we are not, at all, properly
informed. I t may be, that, under some army regulation or some
statutable provision, he may have been constituted an officer, with
a certain rank, bringing him within the purview of the royal
bounty; but we have no allegation of any such thing, and the
want of it could only be supplied by an amendment of the plead­
ings. Possibly, if the claim seemed substantial and entertainable,
that amendment might be allowed, as he has acted for himself in
the conduct of his case, and the objection does not appear to have
been taken in the Court below. But it seems to me, that his
contention fails, as well with reference to the defendant whom
he sues, as to the right of a Court of Equity to meddle with
his case.
As to the defendant, his official position does not constitute
him a trustee answerable for a breach of duty, or the fulfilment
of a legal obligation, in an ordinary Court of justice. The Secre­
tary of State for India is a great officer, who has, from time to
time, represented public bodies and been made amenable, in his
representative capacity, to such a Court. And possibly a warrant
might be so shaped—investing him, personally, with property for
the benefit of named individuals, on a specific trust,—as to give it
jurisdiction over him. But he is not brought here because he is
statutably responsible, or because the warrant imports a personal
charge or a personal liability. It is the " Secretary of State for
3 2U2
630 HOUSE OF LORDS [VOL. VII.

H. L. (E.) the time being " to whom the Sovereign delegates the exercise of
1882 a certain discretion, with careful reservation to herself of power
KINLOCH to regulate or overrule it, at her pleasure.
s RETARY There is no magic in the word "trust." In various circum-
OF STATE stances, it may represent many things, and the Secretary of State
— to whom a delegation was made for special and specified pur-
i0r
. ' poses, might well be described as a " trustee " for the Crown, as,
for the Crown, he was required to take on himself the distribution
of the property in question. But he was not constituted a "trus­
t e e " for a cestui que trust entitled, according to the rules of
Equity, to ask for the administration of a fund.
As to the cases of Alexander v. The Duke of Wellington (1) and
Brown v. Harris (2), I shall only say that they seem to me to give
no sufficient support to the contention of the appellant.
Her Majesty has vested in her a certain fund, and it must get
out of her possession before a Court of Equity can deal with it.
She might, of her own motion and at her own discretion, have
disposed of it to trustees for the expressed purpose of division
amongst specified individuals; and in that case they might have
successfully sued for the enforcement of their rights. But the
Queen does no such thing. There is, as I have said, no evidence
of any transfer from her. She does no act to create rights so en­
forceable. She employs the Court of Admiralty, under statutable
authority, to ascertain the classes of persons properly entitled to the
benefit of the fund, and the Judge of that Court, after due inquiry,
designates those classes. This being ascertained, it is further
necessary that amongst those classes there shall be a fair distribu­
tion of their respective shares. Her Majesty cannot make such a
distribution, personally ; and she appoints her Secretary of State
for India that he may execute a duty which she cannot perform.
"What power was given to him, and under what limitations, the
warrant clearly shews. I t directs that " in case any doubt shall
arise in respect of the distribution of the booty or proceeds hereby
granted as aforesaid, or respecting any claim or demand on the
said booty or proceeds," the Secretary of State shall determine
i t ; and his judgment " shall be final and conclusive to all intents
and purposes, unless within three months after the receipt thereof
(].) 2 Rusa. & My. 35. (2) 13 Yes. 552.
VOL. VII] AND PRIVY COUNCIL. 631

at the office of the Commissioners of our Treasury, we shall be H. L. (E.)

pleased otherwise to order, hereby reserving to ourselves to make 1882
. such other order therein as to us shall seem fit." The appellant KINIOOH
founds his case on a " claim or demand" for an undistributed „ "•
OECKETARY
portion of the booty; and the decision as to that demand is rele- OP STATE
gated to the Secretary for India with a reservation of the sove-
reign's authority to reverse or modify his decision. His position ' ° ^Ban*
and responsibility do not appear to me to warrant interference with
him by the Court whose authority has been invoked by the ap­
pellant: and I think that the appeal must be dismissed with
costs.

LORD BLACKBUKN:—

My Lords, I am of the same opinion; and I intend to rest my

judgment on a very short point. I assume that Her Majesty had
a fund here which she might, if she had been so advised, have
handed over to a trustee, to hold in trust for those persons to
whom she had given a special interest in it, leaving him, the
trustee, to determine who they were and to hold it for them.
The effect of such a course would have been that any one of those
persons whom she had made cestuis que trust could have brought
the whole fund into Chancery, and have had the whole matter
there investigated. I think that it would have been very injudi­
cious to advise Her Majesty to do so, but I think that she might
have done so. I will not express an opinion upon the point, which
has arisen, whether the Secretary of State for India in Council
was such a person as could have been made a trustee in this way.
I will suppose for a moment that he was.
But then it is equally plain that Her Majesty, instead of handing
over the fund to a trustee so as to carry the whole thing into the
Court of Chancery, might have said this, " I will appoint an agent
to examine into the claims of the parties and to distribute the
fund amongst them;" and, if there was anything on which there
was so much doubt that it should not be given to that person to
determine, leaving an opportunity to appeal to Her Majesty, who
would reserve to herself full power to make a grant; and Her
Majesty would, I presume, exercise that power, if it was a question
of law, by referring it to the Judicial Committee of the Privy
632 HOUSE OF LOKDS [VOL. VII.

fl. L. (E.) Council to give their advice, as she has, I think, full power to do.
1882 Now if this were a trust of that kind the Court of Chancery would
KINLOCH h&ve no power over i t ; the individuals who were to receive Her
„ "• Majesty's bounty would not have the relation of cestui que trust
OF STATE and trustee as between them and Her Majesty's agent; they
_ _ ' could not bring the matter into the Court of Chancery; they
M urn
' could bring it before the Secretary of State for India in Council,
subject to Her Majesty taking the opinion of the Judicial Com­
mittee of the Privy Council upon any question of law, and subject
of course to such further inquiries as Her Majesty might think
fit to order. And that, I think, is a reasonable construction of
this grant, and is in fact what Her Majesty did.
I said that I was going to rest my judgment on a short point;
it is simply this: On the construction of this warrant, as I read it,
the Secretary of State for India in Council was made an agent of
the Queen, subject to Her Majesty's control and power, to pay
away the moneys when quite satisfied that the claims were, right,
but he was by no means made a trustee subject to the power
and control of the Court of Chancery.

LORD WATSON : —

My Lords, this case, in my opinion, is a very plain one, and as

I entirely concur not only in the result at which your Lordships
have arrived, but also in the reasons'which have been given by
your Lordship?, I have nothing to add.
Order appealed from affirmed ; and appeal dismissed
with costs.
Lords Journals 19th May 1882.

The appellant in person.

Solicitor for respondent: H. Treasure.