The Sun.
London, England, 1849-11-24 00:00:00

tribirb %talon

BAIL COURT.—(THIS DAY.)
(Before Mr. Justice PATTESON.)
THE DEAN AND CHAPTER OF ROCHESTER V. WHISTON.
Sir F. THESIGEH applied to tie Court, calling upon
the Dean and Chapter of Rochester to show cause why a
writ of prohibition should not issue to restrain them from
enforcing the sentence of deprivation against the Rev.
Richard Whiston, head master of the Cathedral Gram-
mar School of Rochester. The cathedral church of
Rochester was founded and endowed in the year 1542,
by King Henry,VlLL,outnf the possessions of the dissolved
monasteries, and the Dean and Chapter were made a
corporation for the purpose of governing the endowment.
Attached to the Cathedral was a grammar-school which
was to consist of a head-master, an under-master, and
twenty scholars, and other boys who might be educated
at the school. In the statute regulating the appoint-
ment and removal of the masters, there was a provision
made for four students being sent to the Universities
and being maintained there out of the funds of the in-
stitution. The statutes also specified the stipends that
were to be paid out of the endowment. The Dean was
to have 100/. a year ; the Chapter 201., while the students
sent to the Universities were to have out of the funds
until they attained the degree of Bachelor of Arts, 51.
a year; and when they had obtained that degree,
and before they became Master of Arts, they were
to receive 61. 13s. 4d. per annum, but it appeared clear
by the statutes that the object of the endowment was,
that these stipends should exhaust the whole of the
funds obtained from the confiscated property, and the
sum mentioned did, in fact, swallow up the whole of the
money that was annually obtained in 1642. Mr.
toe was appointed hi al master of the school in
November, 1842, and as he considered the office was one
which he was entitled to held for life, or during good
behaviour, he hail laid out two sums of 4,0001. and
2,500/. in the purchase of a house and lands for the
purpose of pi oviding sufficient accommodation for
the scholars. At the time he joined the
school, there was not a single free scholar in it, but so
well had Mr. Whiston performed the duties of head
master that the full complement of 20 free scholars has
since been made up, and the school now consisted of not
lets than 50 boys. In the progress of his ministrations
as head master he had ascertained that the endowment
estates had so much increased in value, that instead of
receiving his original stipend of 100/. a year, the Dean
was now in receipt of 1,5001., while the Chapter's had
risen from 201. to 7001„ but the stipend of the students
had remained at the same figure that they were when the
foundation was made, in 1642, namely 5/.
and 6/. 13s. 4d. Believing, however, that
it was the intention of the Royal founder that the
scholars should participate in the benefit of any such
increase in the ratio of the original amount, he repeatedly
addressed letters to the Dean and Chapter upon the
subject, urging them to augment the allowances of the
scholars sent to the Universities, adding that, by his
own private exertions, he had succeeded in increasing
them 80/. a year ; but the answers he received from the
clerk of the Dean and Chapter were of so evasive and
indefinite a nature, that he ultimately had recourse
to the Bishop of the diocese, who, after treat-
ing his application in a very off-hand manner,
eventually wrote him a letter, to the effect that the only
mode of testing the question he had raised was by insti-
tuting a suit in Chancery. In the mean time, finding
that there was little chance of his obtaining redress for
his scholars at the hands of either Dean and Chapter or
the Bishop, he visited every public or private library in
the kingdom of any importance, and collected all the in-
formation he could on the subject of cathedral trusts
and endowments, which he published in the form of the
pamphlet under the title of " Cathedral Trusts and their
Fulfilment," and which showed beyond all questio❑
sat in the majority of instances the trusts had not been
administered as their founders must have intended. Of
course the pamphlet included the school at Rochester,
and the language in which it was written, though
adhering strictly to the truth, so excited the displeasure
of the Dean and Chapter, that by a deed under their
corporate seal they ordered him to be removed from his
post of headmaster of the Grammar School. This was
about the commencement of the last midsummer vaca-
tion. When the school resumed again, the Dean arid
Chapter served a notice upon Mr. Whiston, can-
celling the former deed, and requiring him
to attend before them at a visitation to answer
°erten' charges of slander arising out of the publication
of the pamphlet. He prepared a statement in answer
to those charges, but by the advice of counsel who had
previously advised him that he was correct in the view
he had taken of the endowments, he refused to put it in
without it was received with a formal protest against
the right of the Dean and Chapter to proceed as they
were io.ng. The Dean and Chapter, however, refusal
to eomply with this request, and eventually they made
another order, and sealed another deed removing Mr.
Whiston from his situation; meanwhile a bill had been
filed in Chancery, before Vice-Chancellor Wigram,
to restrain them from proceeding in their former sen-
tence of deprivation, but his Honour ultimately decided
that the question was not within his province, and the
matter was now the subject of an appeal to the Lord
Chancellor. Now, with regard to the last sentence, it
was apprehended the Dean and Chapter. had no power
to pronounce it, inasmuch as their first deed, which they
had thought proper to annul, had altogether disposed of
the offence, if offence it ciuld be called, since it did
actually for a time suspend, as it were, Mr. Whiston
from his situation. But, supposing that it were not so, it
was contended that the statutes by which the school and
the endowment were regulated, only gave the right of
removal where the head master was incompetent to dis-
charge his duties, or conducted himself in an unclean
and filthy manner, neither of which charges could be
made out against Mr. Whiston. The statutes, in fact,
did not contemplate such an offence as this; bat in the
statutes of Eaton and Harrow, there was provision made
for punishing slander, but it was only upon the third
offence that the offender could be altogether expelled, and
therefore, relying upon the practice of other similar
foundations, the Dean and Chapter had clearly exceeded
their authority in this instance.
Mr. Justice PATTESON doubted whether a writ of
prohibition would lie in this case. He thought the ap-
plication ought to be a mandamus to restore Mr. Whis-
ton to his office.
Sir F. THEsIGU said they disputed that he had heen
removed, for although another master had been ap-
pointed, who refused to accept the situation, the question
had been properly decided, Mr. Whiston was still de
facto, but it remained yet to be settled whether he was
de jure the master; and if they took a mandamus the
Dean and Chapter might come and say, " Why you are
not removed; you tell us we have no power to remove
you."
Mr. Justice PATTESON still entertained a doubt upon
the subject, but the Learned Counsel must have given
the matter more consideration than he could do uow,
and perhaps he had better take the motion as he had
framed i•.
Sir F. THESICER said he would rather take his Lord-
ship's first impression than his own last conclusion, and
therefore, with the permission of the Court, he would
take the rule as in the alternative.
Mr. Justice PATTESON said he might do so.
Rule nisi accordingly.