McGill and its Story, 1821-1921. Cyrus Macmillan

him in the October term.” To this letter Dr. Strachan replied, “I should hope that Mr. Desrivières will have a greater respect for the memory of his greatest benefactor than to contest a Legacy which goes to establish an institution which he had so much at heart.”

      That the “general belief” and the fears above referred to were not groundless was soon apparent. Formal application for the vacating and the giving up of the estate was made by the trustees of the Royal Institution. The application was curtly refused. Francis Desrivières was in possession of the estate and he determined to remain in such possession until the Courts should decide otherwise. His solicitors based their claim, on his behalf, on the plea that a college had not yet been erected, that no steps had been taken towards its erection, that there was no intention to proceed with its establishment, and that it was now too late to comply with the conditions of the will with reference to time. With respect to the endowment fund, they claimed that they were not obliged to pay it until a college had been actually erected as provided in the will. As a result of these claims, a suit was at once instituted in the Courts by the Royal Institution for the purpose of obtaining possession of the estate, and on October 3rd, 1820, the Board passed a resolution authorising their attorney, Mr. Sewell, to secure the aid of Mr. Stuart as counsel in the case. Mr. Sewell subsequently had the assistance of Mr. Ogden, Mr. Vallières de St. Real, Mr. Griffin, and Mr. Cochrane.

      The Board soon realised that if their suit was to be carried to a successful conclusion they must have funds to meet necessary expenses. They applied to the Governor-General for financial assistance, and as a result a sum of £200 was advanced to them as a loan, from the proceeds of the Jesuits' Estates. They realised, too, that it was necessary at once to give the College some semblance of organisation. Their solicitors advised the securing of a Charter without delay, and on February 7th, 1821, the Secretary of the Board wrote to Mr. Sewell, stating that “application for a Charter will be made to His Majesty's Government without loss of time, but it is the unanimous opinion of the Board that the case should proceed.” The Charter [here included as appendix B] received the sanction of the Crown on March 31st, 1821, and formed the basis of the court plea of the Royal Institution. Two years later the Board decided to secure a teaching staff, and by 1824 they had appointed a Principal, who was to be also Honorary Professor of Divinity, and four Professors. The latter held merely pro forma appointments, and were intended to fulfil a technical legal requirement; none of them ever lectured in the University, and when the College was actually opened five years later those who still remained willingly resigned to leave the Governors free to fill all Professorships as they desired. But the fact of their appointment doubtless helped the Board in the suit then pending.

      It is needless here to outline in detail the litigation that followed. In answer to the Desrivières claim, the Board contended that, as required by the testator, McGill College had now been, to all intents and purposes, erected and established by Letters Patent under the Great Seal, and by the appointment of Professors. All the conditions of the will had therefore, they said, been fulfilled. Accordingly on November 8th, 1821, they made a formal demand upon the executors, the Hon. John Richardson and the Hon. Justice Reid, for the transfer of the legacy of £10,000 with interest due since the death of the testator. Francis Desrivières was in possession of this money, and on December 4th, 1821, the executors called on him for its payment. He replied that it would not be paid until the college had been built and established, as the case connected with property only had not yet been decided, and he did not regard the mere obtaining of a Charter as fulfilling the conditions of the will. As a result the executors and the Board issued instructions on December 26th, 1821, for the instituting of a second suit to obtain possession of the endowment fund, and the two suits proceeded.

      The settlement of the first case was long delayed, and was attended with numerous discouragements. It involved, too, great expense, which the Board was not always able to meet. The judgment of the Court of King's Bench in Montreal was in favour of the Royal Institution. Mr. Desrivières then appealed from this judgment to the Privy Council, and again an irritating delay ensued before the appeal was heard. In July, 1823, the Board asked the Governor-General for a further loan of £300 from the revenues of the Jesuits' Estates as they were again in financial straits. The advance was made, but it was soon expended, and when forwarding a payment on account to Mr. Sewell on April 15th, 1824, the Secretary of the Board wrote, “this payment exhausts within a few pounds all the money of the Royal Institution. We are therefore in no very enviable situation as to funds.” Four more years passed before the first suit was finally settled; they were years during which in the face of obstacles that threatened the very existence of the College, the Board frequently despaired of success. On August 17th, 1824, the Secretary wrote to the Lieutenant-Governor of the Province, Sir F. N. Burton, pleading for his assistance and co-operation in bringing the case to a speedy conclusion, and asking for further financial assistance. The following extract from his letter indicates that the outlook was not entirely hopeful:

      “The judgment of the Court of King's Bench at Montreal in favour of the Institution in suit against Mr. Desrivières has been confirmed by the Court of Appeals; but a further appeal has been made to the Privy Council; the sum of £300, advanced by way of Loan, by order of His Excellency, the Governor in Chief, in consequence of the address above referred to (in addition to £200 before received), from the proceeds of the Estates heretofore belonging to the late Order of Jesuits' has been subsequently expended. Your Excellency is likewise aware that not only is a question arising out of these complicated legal proceedings now pending in the Court of Appeals, but also that the action for the £10,000 which promises to be at least as expensive to the Institution as that for the Estate of Burnside, is as yet undecided in the Court of King's Bench at Montreal. Of the final result of these proceedings no doubt can reasonably be entertained; but the Institution have before them in the meantime the prospect of protracted Litigation without any means whatever of meeting the heavy expense attendant upon it—or even of defraying their ordinary contingent expenses, however trifling their amount. In these circumstances of unexampled difficulty, the Institution once more humbly pray that your Excellency in transmitting their Memorial to His Majesty's Government, will be pleased to accompany it with such representations as to your Excellency may seem best calculated to relieve them from the extreme embarrassment of their situation; from which, if it is not speedily extricated, not only must all hope be relinquished of the actual establishment of McGill College, already erected by the Royal Charter, but their operations must be suspended altogether and their very existence as a Corporation virtually cease.”

      The reply to this letter was unfavourable, or at least indifferent, and on November 14, 1824, an appeal was made for a grant or a loan of £50 from the revenues of the Jesuits' Estates. Finally, towards the close of 1828, the judgment previously given in favour of the Royal Institution was confirmed by decree of the Privy Council in Appeal, and early in 1829 the Burnside Estate was given into the Board's possession. The suit in connection with the endowment fund was still pending. Because of the judgment given in the first suit, there was no doubt, however, about its ultimate result, but it was not finally settled by the Privy Council in favour of the Royal Institution until 1837.

      When the Board took possession of the Burnside Estate they decided to lease to a farmer named O'Connor, the farm and garden for one year, “on the halves,” on condition that the lease could be cancelled by the Board on three months' notice. The leasing of the property was frequently the cause of controversy and annoyance. O'Connor contracted a bill for garden seeds amounting to over £3. He was unable to pay it and the seed merchant held the Estate liable, as the products of the seeds had improved the property. There was a long and technical discussion, until at last the bill was paid from the proceeds of the sale of wood from apple trees O'Connor had cut down, apparently to end the trouble. On the whole, the leasing was for a time profitable to the Board, but it was not always attended with harmony. Later, the land was leased to another farmer named Kelly for seven years, on condition that the lease could be surrendered on four months' notice, “and that Kelly should cut down the poplar trees.” Subsequently, the estate was leased in smaller sections.

      In order to strengthen the claims then before the courts for the possession of the endowment fund, it was desirable actually to open the College in Burnside House as speedily as possible. It was decided that the opening