The Express.
London, England, 1851-05-09 00:00:00

Samoa W

lON, 111. JONTICI47OIIITMAN. AND WA JV. ICI SUM
TIRE QCEiN (ox THE PRObECUTION OF RICXA!D
WILLIAM ALLEN) F. THE MAITEIL AND FELLOW* OP
DULWICII COLLEGE.

Sir Fitzroy Kelly (Mr. Needham with him) moved for a
rule calling upon the Master and Fellows of the college of
"God's gift,' at Dulwich, to chew cause why a writ of
mandamus should not be granted commanding them to ad-
mit ltichard William Allen to the Mike of warden of the
college. The learned counsel stated that the college in
question was founded by a charter under letters patent of
James the First, by which he granted to Edward Allen, of
Dulwich, Esq., " keeper of our bears and hulls, and master
of our dogs," power to found a college at Dulwich, in the
county of Surrey, to consist of one master, one warden, 4
fellows, 6 poor brethren, 6 poor sisters, and 12 poor scholars
with power to make ordinances for the government of the
college. Edward Allen, accordingly, did make or-
dinances—of which the following are important to
the present case. By the eighth article "as to
assistants," it was ordained, that the two churchwardens
of St. liotolph, in the city of London, of St. Saviour's, in
the county of Surrey, and St. Giles', Cripplrgate, in the
county of Middlesex, for the time being, should be assistants
to the master, warden, and fellows in the government of
the college. Article lith—" on the appointment of a time
for the election of warden"—ordained that the master, on
the day titer a vacancy, ut chapel, should appoint the
' following Monday fortnight for the election of warden, and
should send notices to the churchwardens of the three pa-
rishes, to that effect. Article 15.—"0n the manner of eke-
lion of the warden"—orilairts that on the day of election, the
'nester, assistants, and fellows, should assemble and go to
chapel, and after service and sermon, should proceed to the
election of a new warden, and after reading the ordinances,
1" the elector" should come to an election of such persons as
are qualified. The 16th article ordained, that if there were
more than two persons equally, of the founder's blood, they
should pass by the voices of the electors present, and the two
which should have most voices should draw lots, and that can-
didate whoshould draw the lot having the words" God's gift "
upon it should be the successful candidate. By article 20,
lit was ordained that if both the places of master and warden
should be vacant at the same time (" which God forbid "),
that the meistants should proceed with the fellows, to elect
a master who should then proceed to elect a warden in the
usual way, and the dinner should be then at the joint
charge of the master and warden. These were the statutes
under which the election of warden had always been con-
ducted, and was conducted in the present Case. Accord-
ingly a vacancy having occurred a number of candidates
presented themselves, among whom was the present appli-
cant. The election came on on 31st of March; two persons
were chosen by six votes to live, of whom the applicant was
one ; and upon drawing lots was the successful candidate.
Ile was accordingly declared duly elected, gave the custo-
mary dinner, and was called upon to enter into the bond
required of the warden, but when such bond was ready on
the 17th of April it was announced to him that the master
and fellows were of opinion that be was not duly elected.
The two objections raised to the election were that although
it was true that the two persons, who had drawn lots, bad
a majority of the voices present, that as that majority was
made up entirely of the six churchwardens (the master and
all the four fellows having voted the other way), that that
was not such a majority as was intended by the statutes.l
The other objection was founded upon the fact that, in the
15th ordinance, the word " elector " was used in the sin-
gular ,1
number, and that, therefore, this mode of election,
though it had been carried on ever since the foundation of
the college, was, in truth, not the proper mode.
Mr. Justice l'atteson said—You are aware that there is a
visitor of the college. I happen to know it from having
been engaged in acting as assessor iu a matter connected
with the college.
Sir Fitzroy Kelly said ho was aware of it, and of course
ho was prepared to distinguish this case from that of the
Dean and Chapter of Rochester, which had been so lately
before the court. There was not any reason to suppose
that it was not intended that the votes of the assistants
should have as much weight as the other electors.
Lord Campbell said that in most of the London compa-
nies there were assistants appointed, but they were not

Sir k itsroy Kelly said the usage here would be a suffi-
cient enterer to the objection. Then, as to the visitor, the
charter concludes—'• Lastly, we do of our grace end favour,
&c., create and appoint George, now Archbishop of Canter-
bury, during his life, and after his death his succeasor for
the time being, to be the visitor of the college, to
have full power to visit, order, and punish, ac-
cording to tho ecclesiastical law, and the ordi-
nances of the founder, all things arising in the
college." Admitting that this gave tho fullest visitorial
powers which the term visitor could imply, still that power
would only extend to disputes between members of the
establishment. But this was a matter in which a third
party was concerned, as the applicant had only been elected,
but not admitted, a distinction which had always been re-1
cognised, and was so particularly in the cue of '• The King
and Queen e. St. John's College, Oxford" (4 Mod., 260),
where it was held that, where a mandamus was asked for
by a mere nominee, it was ne answer to say that there was
a visitor. The same ease came on again, and is reported at
368, but no judgment is there reported ; but the case is re-
ported in Comherbstch, 236, with the judgment of Holt,
which decided that the 'litter has no pewee until a party
has become a member of the body.
Lord Campbell—You may take a rule.