THE MASTER AND BRE THREN OF THE HOSPITAL OF orders. It is the object for which the house is established that makes it a spiritual or lay foundation. If a hospital be established for the relief of the poor, and if there be no cure of souls attached to it, it is a lay foundation, though the founder shall have annexed as a qualification for the office that no person shall be master or warden of it except a clerk in holy orders. That this Hospital of St. Cross was and is a lay foundation, I consider to be established by the original foundation, the proceedings in the time of William of Wykeham, and by those in the reign of Queen Elizabeth. In the exemplification of a commission and proceedings thereon from William of Wykeham, to inquire whether the custody of the Hospital of the Holy Cross was without cure of souls, and could be held with another ecclesiastical benefice, the finding is, "Whereas we find the party of Sir William the Keeper aforesaid to have lawfully proved his intention deduced in the same proposition or libel and article aforesaid in all things and in everything, and that the said custody of the house of the Holy Cross aforesaid, to be free and exempt from all cure of souls aforesaid," and so it holds that the churches of the Holy Cross, of Fareham, Twyford, and the like, can be legally held with it. There is an express finding, therefore, sometime between the years 1336 and 1405, that this was then without cure of souls. It is not alleged that it has now, or that it ever had, any cure of souls attached to it. The only remaining point, then, on this part of the case is, whether the jurisdiction of this Court is taken away by reason of the visitorship of the Bishop of Winchester. If this were the law, it would be very unfortunate; for it does not require the history of this case to teach us that the visitorship vested in any one, whether a corporation sole or aggregate, or the heir of the founder, is a mere formal office, the duties and functions of which are rarely, if ever, spontaneously performed. But the law is not so. Where there is a clear and distinct trust, the Court administers and enforces it as much where there is a visitor as where there is none. This is clear both on principle and authority. The visitor has a common law. office, and common law duties to perform, and does not regard the performance of the trusts which belong to the various offices which he may take care to see are properly kept up and appointed. Green v. Rutherford, and the case of The Berkhampstead School, and several other cases, expressly establish the authority of this Court in cases of trust, and the duty of this Court to see that they are properly performed; notwithstanding that there may be a special or a general visitor. I am of opinion, therefore, that the jurisdiction of this Court is not taken away, and that it is the duty of this Court to enforce it, so far as it relates to the original charity or Hospital of St. Cross. I have refrained from saying anything hitherto respecting the Almshouse of Noble Poverty, to found which this hospital was endowed with a large portion of its present possessions by Cardinal Beaufort, in the reign of Henry the Sixth, and I think it unnecessary to go through the documents in detail; for this, (as it appears to me) very obvious reason, that the observations which I have made with regard to the original charity apply with still greater force to that charity. In truth, it has scarcely been contended by the defendants that this charity, if it ever was established, must not really be carried into effect by this Court; for the main grounds for resisting the interference of this Court to regulate the original charity, and which I may call the Hospital of St. Cross Proper, are not applicable to this superadded charity. In truth, the arguments against the jurisdiction of this Court with respect to the property arising from the grants to endow and establish this charity of Noble Poverty, seem to me to resolve themselves into this, that, from the absence of all records, it must be presumed that the almshouses were never established in reality, and that therefore the lands and possessions given for that purpose must be considered as an endowment of the original hospital, and therefore as belonging to and incorporated with it. I do not concur in this argument, and, there being clear evidence of this property having been devoted to the establishment and maintenance of a particular charity which was entrusted to the care of the Hospital of St. Cross, of which certainly few traces remain except the large possessions and the title of it, although the mode of effecting it laid down by the founder is lost, it is, in my opinion, incumbent on this Court to settle a scheme for the future application of it. But even if I concurred with the argument, and considered these Almshouses of Noble Poverty as a mere supplemental endowment of the original charity, I should, for the reasons I have already stated, be of opinion that the defence, resisting the intervention of this Court, would fail. In reviewing this case, I find it impossible not again to notice the singularity, that in 1372—200 years after the charity was established, the master endeavoured to convert it to his own use, and failed; that in 1576-200 years later-the master again attempted the same course, and was defeated by the statute of the 18th of Elizabeth; that 120 years later, in 1696, the master again attempted the same course with greater success than had attended the previous attempts, and succeeded in diverting this charity from its legitimate purposes for 150 years. 1853. THE ATTORNEYGENERAL v. THE MASTER I shall now endeavour to make a decree which shall, as plainly as I can, but not more plainly than has been already done, state the charitable nature of this foundation; but looking at the pertinacious attempts so often repeated, and apparently with increasing success, I cannot but foresee the probability that, some THREN OF THE Century or two hence, my decree may be produced, and become the subject of comment also, in the endeavour to defeat the attempt by the superintendent of this charity to pervert its revenues to his own use. AND BRE ST. CROSS. There must, therefore, be a declaration in accordance with the prayer of the information, an injunction to restrain the future grant of leases on fines, a reference to inquire what (if any) steps should be taken in reference to these leases now in existence, but originally granted on fines, and a scheme to settle the charities. With respect to the decree against the Earl of Guildford personally, the Attorney-General said that he would leave that matter in the hands of the Court. The Court, however, cannot go in this respect beyond the prayer of the information, and as the information does not ask for any accounts prior to the filing of the information, and as undoubtedly the master had, when appointed, the custom of above 100 years to rely upon,—though, in my opinion, that custom originated in fraud or wilful blindness of the persons who made it,-I shall not charge him with the rents and profits received prior to the filing of the information; but from the date of the information he must account for the rents received, and he must also be answerable for keeping the building in a proper state of repair, which was, according to his own contention, a duty which fell upon him. Neither shall I make him pay the costs of the information. Of course, taking the view I do I cannot give him or the other defendants any costs. The informant will have his costs out of the charity, but no costs to any of the defendants. Reserve further consideration, and subsequent costs. Solicitors, Terrell & Co.; Young & Vallings; Bolton, Merriman & Co. MEMORANDUM. In the vacation after Hilary Term, 1853, STEPHEN TEMPLE, Esq., of the Inner Temple, EDWARD JAMES, Esq., of Lincoln's Inn, MONTAGUE SMITH, Esq., of the Middle Temple, and WILLIAM ROBERT GROVE, Esq., of Lincoln's Inn, were appointed of Her Majesty's Counsel learned in the Law. INDEX ΤΟ PRINCIPAL MATTERS. ABANDONED SUIT. ALLOWANCE to Executors. See Costs, 1. ABATEMENT. AMENDMENTS. See Practice, 11. ANNUAL VALUATION. See Partnership. ANNUITY. 66 1. A., by her will, directed her trustees to stand 2. A., in consideration of an advance of 2001, 1. A., who was resident in Somersetshire, was made a bankrupt in 1815, but he did not obtain his certificate. In 1817 he went to reside in Suffolk, and afterwards commenced business there, and carried it on until his death in 1852. His executor proved his will. Under an order of the District Court of Bankruptcy, made on the petition of a creditor of A., who became such subsequent to his bankruptcy, the official assignee was ordered to pay the funeral and testamentary expenses, and the subsequent creditors of A., and then his creditors under his bankruptcy, and to pay the surplus to his executor. A claim was filed by his executor against the official assignee for the administration of A.'s estate. Held, that, notwithstanding the order of the Court of Bankruptcy, the estate of A. ought to be administered by the Court of Chancery, and the usual administration decree was made. Tucker v. Hernaman (V. C. S.), 25. 2. Where a man, whose wife had a vested interest in remainder in an ascertained fund, became a bankrupt, and having survived his wife, died before the tenant for life, without having obtained his certificate, the assignees under the bankruptcy are entitled to the fund. Drewe v. Long (V. C. K.), 58. His 3. In 1815, A. became bankrupt, but did not obtain his certificate. In 1817, he went to reside in another part of the country, and carried on business there until his death, in 1852. executor proved his will. Under an order of the District Court of Bankruptcy, made upon the petition of a creditor subsequent to the bankruptcy, the official assignee was ordered to pay the funeral and testamentary expenses, and the subsequent creditors of A., then the creditors under the bankruptcy, and to pay the surplus to the executor. The executor filed a claim against the official assignee for the administration of the estate by the Court of Chancery. — Held, CHANCERY AMENDMENT ACT. that the estate ought to be administered by the Court of Chancery, and not by the Court of Bankruptcy. Tucker v. Hernaman (Lords JJ.), 360. BOND. A. was indebted to C. in a sum secured by A.'s bond, and at the death of C. such bonddebt was due. C., by his will, appointed A. his executor, who proved the will, and acted in the trusts thereof. After the death of C., A. debited himself in his books with the amount of his bond, and also debited himself with the interest annually due thereon. Held, that C., by appointing A. his executor, had not thereby altered the character of the debt, but that the same remained a specialty debt, and retained its priority. Turner v. Cor (P. C.), 1. A., by his will, directed that the crops, &c. of certain plantations in the West Indies should be consigned to H. and Co. in Liverpool, until the debt due from him to them should be paid off and discharged; and a question was raised on appeal whether a lien had not been thereby created by A. in favour of H. and Co. upon the proceeds of those estates, directed by the will to be sold, for any debt which, at the time of the death of A., might be owing to H. and Co. in respect of the consignments sent out by them. Held, that as there was not the least trace of the question having been raised by the appellants in the Court below, the Court of Appeal could not entertain that question. Ib. The stat. 5 Geo. 2. c. 7. s. 4. makes real estate in the West Indies legal assets for the payment of debts. Held, (notwithstanding the decision in Charlton v. Wright, 12 Sim. 274.), that the legal priority of debts in the West Indies was not intended by the statute to be interfered with; and that the same priority existed as to specialty debts against real estate, as they always had against personal estate. Held also, that it was not competent to a testator to disappoint, by a devise in his will, the rule of law in that respect. Ib. BONUSES ON SHARES. See Husband and Wife. BREACH OF TRUST. See Trusts and Trustees, 2. 6. Indemnity against. See Trusts and Trustees, 6. Securities given by Trustee to Co-Trustee to restore Fund. See Trusts and Trustees, 3. CANAL COMPANY. CANAL SHARES. CESTUIS QUE TRUST. CHANCERY AMENDMENT ACT. |