Court Of Chancery, Saturd...
The Times, 1824-01-19T00:00:00

LAW REPOR2T. ;ir. ounuray appearea in oart ant tendered a plan of the pre- mises in Somersetshire, declaring this to be the true plan, and that those produced by the agents of the Duke on the trials were not ibithful representations. There appeared to have been some defect in the conduct of both parties, as to verifying the plans. The LORD CHXANCELLOR reproved the delay of the Duke's agents. Alr. Gourlay made a tender to the Court of fresh papers, and nevr observations which he wished to accompanythem. The LoitD CHAN'CELLOR refused to hear a word more from either side until he had giveYi judgment. A3r. Gourlay said, that then his observations would be too lzte to rectify the error which he wished to point out. The LORD CHANCELLOR said, that was a mistake of Mr. Gourlay, which he made from not knowing the nature ot' their pro- ceedings. He wondered why he shauld be caUed on to deal wi:h Mr. Gourlay diffrrently from all other suitors. Had any counsel used half of the improper language to him which he had listened to in this case, he would take care that such counsel should never again speak to bim in this court. Both sides withdrew to file affidavits in verification of the plans. HIGHi GATE CHARITY. THE ATTORVEY-GENERAL V. LOnD MANSFIELD AND OTHERS. The argument concluded about the middle of this (the fifth) day of hearing. The LORD CHANCELLOR proceeded to an elaborate review of the merits of the case. His lordship found, by strict reference to the original deeds and the letters patent of Elizabeth, that the grant was made absolutely for the maintenance of a free gram- mar-school, and only conditionally to enable the trustees to give relief to certain poor in the neighbourhood of High- gate. A grammar-school, according to all decisions ever known in suits as to charitable trusts, meant a school for the teaching of the Greek and Latin tongues. Theactual use and application of chari. table trusts would frequently alter in course of time, and it might be difficult for courts of justice to restore them to the uses for which they were originally designed; buc whenever the object could be ascertained by reference to the words of the original grant. suppos- posingalso that such object were legal anrd practicable, it would be the duty of the Court to restore the charity to the condition in which it originallystood,and in which the foundermeant thatitshould stand, fbr the will of the founder was theonlylawbywhich the Court could then proceed. Here was an intention most expressly de- clared by Sir Roger Cholmondeley to found a free grammar school for the teaching and instruction of 40 boys, with a chapel, land and revenues assigned for its support: here were the deeds of feoff- eqent, the Queen's letters patent, the Bishop of London's grant of the chapel together ;ith writings signed by his successor, clearly affirming tbc,t grant; in all of which the grainmar-schbol was recited as the positive object of the trust; and in many of them the wording of tietn expressly declared that the chapel, lands, and revenues were to be for the benefit of the school, and the better education and teaching of the boys, " and for no other purpose whatsoever." Now it had been contended that there was a double trust, consisting of the school according to the exoress mention of the instrument, and of the rhApel, styled for the purpose of the argument " a chapel of ease for the accommodation of the inhabitants ef Highlgate," which must be supposed awd implied, because, as it had been forther ar- gued, the cnapel being a subject of episcopal custody, 'the see dould never bave divested itself of the care an4 tutelage of it, except by putting it in trust with parties who would be bound for the support and maintenance of it to answer to the b.shop, He admitted to the Solicitor-General that chapels, and even churches, inight become gubjects of trust in the handg of a corporation t but the prelimi- nary difficulty was greatest of all-namely, that of proving that this sac,elen, cave, or chapel, ever had been a chapel of ease for the ac. comnapdation of the inhabitants of Highgate, adopting that term apart from any view with respect to the interests of the school. It appeared fro4 the original deeds that early in the 16th century, the chapel had been granted to one Wm. Litebfield, in regard to his age and infirmities, by tbe Bishop of London; and the duty to which he was bound in consequence Vas, that be should pray for tie grantor, that learned person supposing, as it would een, that the bishops wbo were to gome after him would be able to make provision each for thesafety,of his own'soul. There was another grant of the same chepel to another aged gtd infirm person, and by another bishop, of the date of 1517, in whiel there was mQre provident care taken of tile souls of the bishops, for the grantee was to piay for the souls of thegragntor and 11 his successors; and ip thar ondition the chapel seemed to have stood until the suppressloa of superstitious trusts, under the abolishing statutes. lt>vas then granted by Bishop GSritdal to Sir Roger Clrolmopdeley for the parpose of founding the school, witn the sanction, byletteripatent, ot'the Ctowvn It was re, claimed as a forfeiture to the rowvn under the abolishing statutes,and again $rgnted out, and flpaUy fixed in the hands of the trustees under thjeirhde of " Warden and Go0vernors of Higihgate Free Grammar- scheoL" Tiseze was nothing, therefore, in all this upon which an assumption could be grounded that the chapel was in the care of the bishop, for the use pnd accommodation of the people of 1igh- gate, in thie sense of apafi5h church or a chapel of ease. As it was contended that the see could not be divested of the charge of sup- porting lchapclo church, or providng foq its support by means of a suflcient trust, so on the other'hand- it wits plqn that they could riot burrep te see with an enlarged and a constantly enlarging charge,- such as t}zrgumentusedin this easewenttoprove. Where was the obligation mentibne& in the instruments, which required either thre bishope, o the trustees to enlarge the chapel as the. population increased 7 f there was no menton f it inuthe instrurnent,s at what pefrl iolid it arise in theiadmitiis- iratiepinf the trustn %Gd,. above all, elbera 7as it tq conclude? 'liire vas no instane of -it heretofore. If it were nobv btlThlg 'n the tiujito fi ccd eomniodation for 1,500 persons, it would be S binding on themry en,d by so nccomiodat'3,000. and se on, until tEe means of supporting the schgol, the only valid object of the trust,Iswould be' aw_pt away. Besi4es, he didnot see cleary that the irster0sts,f the pargon of tbe parish might pot be infingeil, and hewuldnotsa6 that ie parsonof the patrish hol ntarightto be admitted a party to these proceedings' e wished to be eqally guarded. in what he aisl wth respec to the rights of the bishop, axd.of the heir at inw of the:Cholmendeley estates, both of which parties would baye - right to be heard if it could bc successfuy contended that the revenues oF thi charitymight lawfully be dfrected flom the purpose designed by ie found. er to that of provding . afapel larg,e io0glr For the a,. cqrnmodation of all' ihe in'iabitts n E iza Be iaf ! membered thecaseof the college: in whibh.hean the &ljcItor..Ge. neral took-their degrets. Dr. RatclHFeI bad-granted lands to tile miadters. for the purpose of purchasinoli'viigs for-the fellows Pre- sently an act was passed,which prevented the colleges from purchasing nebre 'livings than halt their number of fellows. What was to be done? 'rhe hmasters unfortunately, bad as yet pArebased none but very peoriivingsi TL7ey had money in their hands to better them, bu't they could purchase no more. They did not go in the first in- staxcc to Parliament, but very discreetly ma e tbeir first ap. plication to this Court-; which course should abass be taken en guestions 4f this rmture, when tbere are civil rfrets of other parteesinvolved. But what did Lcrd Thurlow do? lesaid, i; will not hea. you, unlessyou call in the heir at law; for he has a rigbt to be beard before vou can be sHowed to proceed to any distri_. bution or application of the funds contrary to, or apart- from, the vwill of theifonor." The difiiculties there, however, were tot rid of by the repeal of the acts which todk pl5ce shortlyafterwards; The 'parties in this case would have done vell had they-taken the precau- tion of comning tothis Court foramore clear deflnittonof thecivil rights of all those wht might be irn anny way interested befdre going to Parlhianent, for that was not the proper tribanal to go to in thd first instance;-wlerethere wrere any questions sf civil right left unadeter- minedl. HSe feared that the circumstance of dheir having gone first into Parliament would prevent him from allowing them the costs 'which attached lto that application, and which, upon consider- ing all tiathadtalken'place he miightotherwise have awardedthem for he idmltted that the trustees were placed itn a singular situation The perversion of the chlaity, fiom a gr mnartchoo headed by a "ea t and le&zed prso6n,' to the teaching of zeading and wri;ing by the stcton, who, iS Was to be presumed} waineither Q,onian nor Cambrian, coald not be attributed to them, as it s,ppeared from the evidence that from some change wrought heretofore in the public taste, the learning of Grwek and Latin had been volun- tarHi alyaudQned by the inhabitants, though, by a subsequent chabge, Itmight be found that there vwould be boysmore than enough candidates for the advantage of tlz tmo4eof education. Ie was in clined therefore to ireat them with all posslble leniency. But he did not recollect a single case in which the Coutt had allowedt etstI where the 4rtapplicatifn liad been to Parliamrent, when it shouldI bave been made to the-ordinary tribunalq. Re requested infonna. i tibon if anyof the cottnsel should h4ppen to recollect such a ease. As itanpeared to bim in al1 probability the matter would be referred, anld open she report as to t,he bestLmeaU, of rein.ttitin the charity as, ncarly aS possible, ag. ecL.y3r to ~..e w... v-. ;Qte ?bornder, he might or might not be called onto issue adecree. Thre TPtight be anotherI qtuestion, if any steps at all need be taken, supposing thatI tite psesent tnaster snould offer himself as having been readyI on every occasion to teach the boys according to the will of the founder. Undoubtedly, a person so offering himself for the fulfil- ment of the duties of the station which he had taken upon himn must be considered as standingunon very strong grounds of right. Ife again wished to be underst aS potcompromising the right of' tie Bishop of London and of the i at law, by any ting which he had said: for, supposing this view of the case to be entirely correct, it did not nor could not he made to interfere -pith the laims of thoie eminent persons. This was all which occurred to him to say upon the present occasion. EHe would take. the papers and evidence, and give them a careful perusal, and mention any doubts or defects in tl:e information which he nmight find in them afterwards. Mir. BIcxI rnTETIt, on behalf of the Rev. Air. Mends, the pre. sent schoolmaster, observed, that by what he had heard now from the Court, if that gentleman were to tum round to the 100 scholars who now were getting itistruetion in reading and writing, and offer to teach 40 of them Greek and Latin, as far as he was concerned, that would be for the present purpose an ample compliance with the re- gulatiops of the charitr. The LoRb ChIArNELLou said, that undoubtedly that reverend gentleman would be treated wftith all possible indulgenct. P?r. HouE, for the relators, said, that they had no other wish towards the Rev. Dlr. Dlends; that they v.would be perfectly satisf ed by the restoration of the charity to its first uses and as to scholars, more than enough would be instantly found in the neighbourhood whose patents would be rejoiced at the prospect of such an advantaqe. I V.OTTRT OR Cr.AN rV n T.TlVT VTs. 17 _ GOURLAY V. TIlE DUkE OF SOIF SET.