Page images
PDF
EPUB

THE KING

V.

Bp. of ELY.

ed at the time of the new in

graftment, by the College acnation under cepting the dothat condition.

*89 ]

place, but not otherwise. But he has directed his fellows to be fellows of St. John's College, though of his foundation; he contracts, that they shall have the same privileges and rights as other fellows, and they are to all intents on the same footing as the rest, save only their proprietary rights. They are to be New visitor can elected as other fellows, there is no provision made as to the only be appointmanner of voting for them; that is referred to the constitution of the College, and so also their age, learning, morals, &c. If the College judge wrong in these points, the visitor may review and reverse the sentence. Dr. Keton's fellows are more over sworn to observe the statutes of the College, i. e. the statutes of the original foundation; for Dr. Keton made none himself, nor could he have made any, inconsistent with those of the foundress. Had he by his sole authority appointed a fresh visitor, that would have been inconsistent with the statutes of the original foundation. But he goes farther; and by disclaiming a power of making such inconsistent statutes, he shews his intention that his fellows should be under the same regulation and government, as the rest of the society. And the general visitor may proceed against either of them, as against the other fellows, even to expulsion. But even if there had been nothing more in the deed, than naming them fellows, they would, eo nomine, have become members of the corporate body, and subject to all the discipline and rules of the College. And [ this way of reasoning is not new. The Attorney-General and Talbot was the case of an ingrafted fellowship by one Freeman, by indenture, (but I don't recollect any clause of distress in it) and one question therein moved was, Whether the authority of a general visitor extended to ingraftments; but Lord Chancellor said, that the party was concluded by his own information; he has considered himself as a member of the College, and is, eo nomine, subject to the general visitor. In Green v. Rutherforth, his Lordship held the same, and Sir John Strange concurred with him in opinion. As to the special re- Power of distress medy by distress, and proceeding in the King's Courts there- by a third perupon; this would have very extensive consequences, and affect consistent with many cases besides the present, as several benefactors have the general visitfollowed the steps of Dr. Keton, by inserting the same clause, atorial power. The remedy is however inadequate in point of value, and it is not given to the party injured, but to Dr. Keton's heirs and the chapter of Southwell. This remedy, and that by appeal, are remedies diverso intuitu. The appeal is a specific remedy to be applied by the visitor of the College; the distress, as in tenure by divine service, is left to the common law. And there are many instances, besides these, where the remedy by distress does not take away the specific remedy. In prescribing proprietary qualifications, the founder has declared his will, and those who accept his benefaction are religiously bound to observe it; and are not to be allowed to say, they can judge better than their founder.

Upon these reasons, I am very clearly of opinion, that there is no ground for a prohibition in this case. If we were to grant

son, is not in

[

THE KING

V.

Bp. of ELY.

it on the second question made, it would create great perplexity in old societies, where perhaps it is now difficult to know the ingrafted from the original fellowships. If I had doubted, or inclined that a prohibition should go, I would have given leave to declare in prohibition; but as I have no doubt, I think, I ought not to consent to it, out of justice to the appellant (who *90] may thereby be kept out of his right for a long time) and also for the sake of the precedent.

*

DENISON and FOSTER, JS., concurred. WILMOT, J., absent in Chancery.

(h) In all lay corporations, the founder, his heirs or assigns, are the visitors, whether the foundation be civil or eleemosynary; and, whatever might have been the opinion, it is now held as established common law, that colleges are lay corporations, though sometimes totally composed of ecclesiastical persons; 1 Bla. Comm. 480, 483; 3 Burr. 1656; that is, if the founder has not appointed a visitor; 1 Ld. Raym. 8; 2 T. R. 352, S. P.; and see Eden v. Foster, 2 P. Wms. 325. There are no particular words required in a donation to a college; it is sufficient if the intention of the founder appears, who shall be visitor, and technical words are not necessary: e. g. Volumus, quod dictus cancellarius magistrum, &c. poterit visitare; et si quid inter eos repererit corrigendum, corrigat et puniat; Att. Gen. v. Talbot, 3 Atk. 662, 1 Ves. Sen. 78; Att. Gen. v. Middleton, 2 Ves. Sen. 327; so a power clearly given to interpret the statutes; 15 Ves. Jun. 315.

But in the case of a private eleemosynary foundation, where no special visitor is appointed, and there is a failure of heirs of the founder, the right of visitation devolves upon the King (ante, 78, n. (t),) to be exercised by the Great Seal, and the Court of King's Bench will not interfere; R. v. Catharine Hall, 4 T. R. 233; which case was recognised and acted upon by Lord Thurlow, C. in Ex parte Wrangham, 2 Ves. Jun. 609. Application must be made to the Chancellor in his visitatorial capacity, by petition to the Great Seal; and not by bill or information; Ibid.; Att. Gen. v. Earl of Clarendon, 17 Ves. Jun. 491. And see particularly the case of Queen's College, Cambridge, 1 Jacob, 1. But where there is in point of substance a visitor, that excludes the general interference of the Court of Chancery, either by commission under the statute of charitable uses, 43 Eliz. c. 4, or its ordinary jurisdiction; Att. Gen. v. Harrow School, 2 Ves. Sen. 551; and see Ex parte Kirby Ravensworth Hospital, 15 Ves. Jun. 305, 8 East, 221; Ex parte Berkhampstead School, 2 Ves. & Bea. 134; Att. Gen. v. Dixie, 13 Ves. Jun. 519. Yet where there was a devise of a rectory to a college upon trust (inter alia) to present the se

The rule was discharged (h).

nior divine, the Court of Chancery received a bill to compel the College to execute the trust. There Lord Hardwicke, C., says, "I agree in general, that if a subsequent donor gives the legal estate, or in trust for the College, without a declaration of a special trust, it will fall under the power of the general visitor to judge of the legal property in the one case, or the equitable in the other; because, by giving in trust for the College generally, and neither creating a distinct visitor nor a special trust, the donor has by plain implication intended it should fall under the general statutes and rules of the College, and be regulated with the rest of their property: although in the latter case indeed a bill must be in equity to compel the trustees, if they refuse: but in the present, the testator has declared a particular special trust, which must in some way be carried into execution and the will observed;" Green v. Rutherforth, 1 Ves. Sen. 462, 473. But if there is a visitor, who can exercise jurisdiction, the appeal must be to him, and his judgment is final; R. v. Grundon, 1 Cowp. 315. This right of appeal however is confined to members of the College upon the foundation; it does not extend to independent members, as commoners, pensioners, &c. whose names are on the boards, who are to be considered as mere boarders, and expulsion as to them is a mere notice to quit, unless otherwise regulated by the private statutes of the College; Ex parte Davison, Id. 319; 2 T. R. 333; R. v. St. John's, Oxon. Comb. 238, S. P. So the Twelve Judges being visitors of the Inns of Court, a mandamus will not lie to those societies, with regard to the admission of barristers; R. v. Benchers of Gray's Inn, 1 Doug. 353; and a bill relating to the purchase of chambers was dismissed in Chancery; Cunningham v. Wegg, 2 Bro. C. C. 241. So the Court of K. B. will not control their discretion in refusing to admit an individual a member of their society; R. v. Lincoln's Inn, 4 B. & C. 855. Yet if a visitor refuse to receive or hear an appeal, the Court of K. B. will compel him by mandamus; R. v. Bishop of Lincoln, 2 T. R. 338, n. (a); R. v. Bishop of Ely, 5 T. R. 475: and where a mandamus had been granted to

the master of a college, the Court would not supersede the writ on affidavits of there being a visitor, but put the Master to make a return of that fact; R. v. Whaley, 2 Stra. 1139. And see post, 547.

The Bishop of Ely is general visitor of Peterhouse in Cambridge, by the statutes of which College the fellows are required, on a vacancy of the Mastership, to elect two fit persons to be presented to the Bishop, or, vacante sede, to the custos spiritualium, one of whom the Bishop or custos is to nominate as Master. The Court of K. B. granted a mandamus to the Bishop to nominate one of two persons so presented, he having previously nominated a third person not so presented: and they considered, that quoad hoc he was not to be considered as visitor, inasmuch as the same power is given to the custos spiritualium vacante sede, and it is clear he is not a visitor. Another ground of their decision was, that in this case, he had not acted in the character of visitor, inasmuch as he had determined in nominating the third person without having heard the parties concerned: the exercise of the visitatorial power being a judicial office (Id. 349, S. P). They also determined, that, this being an application to the discretion of the Court, they had a right to inquire, whether the College had put a right interpretation on the statutes of the College;

R. v. Bishop of Elý, 2 T. R. 290, 334.
The judgment of the visitor is final (1)
Cowp. 322), and his acts, whether right
or wrong, are not to be examined in courts
of law, that is, in cases where he has acted
within his jurisdiction, upon the principle
that he is the judge, whom the founder
has thought proper to appoint; 2 T. R.
336. No court of law or equity can anti-
cipate his judgment, or take away his ju-
risdiction; but his determinations are final
and conclusive; 3 Atk. 674; 5 T. R. 477,
S. P. And there is no appeal from his de-
cision, if the founder has not thought fit to
direct one; 2 T. R. 353.
But this power
of the visitor is confined to acts within his
jurisdiction, and it seems an action would
lie against him, if he were to exceed it;
1 Ves. S. 470. A visitor need not hear pa-
rol evidence; it is sufficient if he receive
the grounds of appeal and the answer
thereto in writing; R. v. Bishop of Ely,
5 T. R. 475. Neither can he compel a
specific performance; R. v. Dr. Windham,
1 Cowp. 377; nor hear evidence on oath;
in R. v. Benchers of Gray's Inn, 1 Doug.
356. In the exercise of the visitatorial
jurisdiction, the Lord Chancellor is not
bound by any exact forms of proceeding;
Queen's Coll. Camb. 1 Jacob, 19. See far-
ther as to the nature and properties of a
visitor, C. J. Holt's judgment, 2 T. R.
346.

THE KING

v.

Bp. of ELY.

MICH. TERM,-31 GEO. II. 1757.-IN CHANCERY.

Case of CHRIST'S COLLEGE, Cambridge.

S. C. Amb. 351, 1 Eden, 10.

the statutes of

MR. TANCRED by deed, 22d January 1721, conveyed his Benefactions to estate to feoffees, to the use of himself for life, remainder to the Universities, his first and other sons in tail, remainder to certain officers of how far within Christ's College, to maintain certain students there, in the sci- mortmain. ences of physic and divinity, and four students of the law, at Lincoln's Inn; and also certain pensioners, viz. decayed merchants, soldiers and clergymen, who should reside in his capital house at Wicksley. By his will, 20th May, 1746, duly executed, he confirms this deed, but fearing the statute of mortmain, 9 Geo. 2 (a), might defeat the uses thereof, he orders, that in case the said uses or any of them should be contrary to law, the estates so settled should go to the fellows and scholars of Christ's and Caius College, to be divided in certain proportions, for augmentation of their stipends.

On an information by the Attorney-General, to establish this

(a) C. 36.

CHRIST'S

charity, at the relation of Christ's College, against the heir COLLEGE. * at law; there arose two questions; J. Whether this was a con[91] veyance to charitable uses, under the statute of Elizabeth (6), and therefore to be aided by this Court; 2. Whether it fell within the purview of the statute of mortmain, 9 Geo. 2, and was therefore a void disposition.

Court of Chancery will aid defective convey

ance to legal charitable uses.

[ocr errors]

Per HENLEY, Keeper.-The conveyance of 22d June, 1721, is admitted to be defective (c), the use being limited to certain officers of the corporation, and not to the corporate body; and therefore there is a want of persons to take in perpetual succession. The only doubt is, whether the Court should supply this defect, for the benefit of the charity under the statute of Elizabeth. And I take the uniform rule of this Court, before, at, and after the statute of Elizabeth to have been, that where the uses are charitable, and the person has in himself full power to convey, the Court will aid a defective conveyance to such uses. Thus though devises to corporations were void under statute Hen. 8(d), yet they were always considered as good in equity, if given to charitable uses. There is here no doubt of Mr. Tancred's power to convey; and the uses are truly charitable and very proper in themselves, the education of poor scholars in the University, students at the Inns of Court, and poor pensioners in his own house. Therefore, however unbecomingly Mr. Tancred has expressed himself in his will, with respect to his relations (and indeed he seems to have cast off all natural affection), and however reluctant I may be to establish a disposition made under this turn of mind; yet sitting here judicially, I am obliged, by the uniform course of precedents, to assist this conveyance; and more especially, because it is the peculiar province of a court of equity, to protect men in the freedom of disposing of their property, which is a point of the utmost importance in a trading country. This conveyance therefore being established under the statute of Elizabeth (e), we are next to consider how it is affected by statute 9 Geo. 2. Mr. Tancred, by his will, makes a disposition, by way of substitution: in case the dispositions are within the statutes of mortmain,-" Then to the fellows, &c. of the two colleges." The relators admit that part of the disposition is void *92] with regard to the pensioners and law students; but then they contend, that the substitution must take place, by reason of the exception of the universities and their colleges in the statute. The defendants contend, that all is void, as well the substitution as the original uses; because the devise is not to the body corporate, but only to the particular fellows in their personal capacity. No cases have been cited on either side. We must therefore form an original construction of this clause in the statute of mortmain. And my opinion is, 1. That this is a de

(b) 43 Eliz. c. 4. See Bac. Abr. Cha-
ritable Uses (C).

(c) 4 Vin. Abr. Charitable Uses (B).
(d) 34 & 35 H. 8, c. 5.

(e) But against the express words of the

*

stat. s. 2; most clearly so, that it be (according to the first point in the next page) a devise for the benefit of the whole body corporate. MS. Serj. HILL.

CHRIST'S COLLEGE.

Devise for the benefit of parti

cular fellows good within

9

Geo. 2. Devise to colleges, as trustees table uses, void.

for other chari

to colleges

vise for the benefit of the whole body corporate; 2. Had it not been so, I should still have thought that the Legislature intended, by the exception in the statute, to save a devise for the benefit of particular members, as well as of the whole body. The Legislature meant to except such devises (ƒ) as were really and bona fide for the benefit of colleges: not those, in which the legal interest only passes to the college, in trust for other charitable uses; for then the statutes of mortmain might be defeated every day. And this devise is for the benefit of the whole society; even of the master himself, who must pass through a fellowship, and partake of Mr. Tancred's bounty in his progress towards the headship. Besides, we all know that in these houses of education, any encouragement for youth to enter into a particular college is a general benefit and profit to the whole society. The Legislature has thrown no restraint Exception of on these gifts, when made to the body corporate of either uni- stat. 9 Geo. 2, extends only versity, or to colleges already established there; intending not to increase the number of foundations, but to have those better already estaendowed, which are already established. They judged that blished. leaving this path open would not, for some time, be liable to (A. D. 1736.) much inconvenience. But when they saw an inconvenience, they restrained even gifts to colleges. Livings are grantable to these bodies, only till they amount in number to a moiety of the fellows (g); lest, if the succession be rendered too rapid, there should not be persons left, of sufficient age, temper, and discretion, to govern the society, and answer the great purposes of the foundation. This devise to the fellows and scholars contains no circumstances that intimate any intent to give them the estate in their * personal capacities. It is clearly to them, as [ *93 ] members of the body corporate, for a perpetual augmentation of the revenue of themselves and successors. Therefore I shall decree the disposition to the pensioners and law students void, under the statute of mortmain (h); but shall establish the exhibitions to the students in divinity and physic, and shall direct the substitution to take place, for the benefit of the fellows and scholars of Christ's and Caius Colleges, in their corporate, not natural, capacity (¿).

(f) The word "devise" is not particularly mentioned in the proviso here alluded to, which is, that this act shall not extend to make void the disposition of any lands, &c.

so that there seems no just ground for saying, that the act makes good any dispositions, whether by devise or otherwise, that were not good before the act, but leaves all dispositions as they stood before the act; that is, that such as before the act were valid, should, notwithstanding the act, continue to be so; and those which before the act were not good, are not made good by the act. MS. Serj. HILL. And see 3 Ves. Jun. 728, A. G. v. Bowyer.

(g) But s. 5, of 9 G. 2, c. 36, restrict

ing the number of advowsons, is now re-
pealed by 45 G. 3, c. 101.

(h) The words of this part of the decree
are these, viz. "that the devise of the ad-
"ditional lands and hereditaments for the
"benefit of twelve pensioners and four
"law students, is void by the statute of
"Mortmain." MS. Serj. HILL.

(i) See 43 Eliz. c. 4; Flood's Case, Hob. 136; Att.-Gen. v. Green, 2 Bro. C. C. 492; R. v. Newman, 1 Lev. 284; Att.Gen. v. Whorewod, 1 Ves. S. 534; Att.Gen. v. Munby, 1 Mer. 327; 7 & 8 W. & M. c. 37; 1 Bac. Abr. Charitable Uses; and Bennett Coll. v. Bishop of London, post, 1182.

« PreviousContinue »