as a heretic, and the other for disseminating Arian doctrines. These circumstances could have little weight if the letters patent had no words on which any exclusive or primary object could have been fastened; but when required to disregard the inference from the words contained in the letters patent, I look to the other acts of the founder to interpret his meaning, if ambiguous, as in The Attorney General v. Shore (Lady Hewley's Charities) (1), I find these acts confirmatory of those inferences. Taking, therefore, into consideration the circumstances of the time when these letters patent were granted, in conjunction with the directions that episcopal sanction must be given to the rules for regulating the school, I am of opinion, independently of the other and subsequent transactions which have affected this charity, that it was originally founded for the education of youth who were members of the Church of England, or were willing to conform to its doctrines; and, consequently, in considering this charity, and how it has been managed, this must be considered as a leading object to be provided for. It does not follow, however, because this is a Church of England school, that dissenters are to be excluded from all benefit of the instruction there given. A material distinction exists between establishing a school generally for the instruction and education of youth of all denominations, whatever may be their religious tenets, and regulating a school, the primary object of which is to afford instruction and education to members of the Established Church, in such a manner as to enable the families of dissenters to participate in these advantages. The Crown, by its letters patent, has pointed out the objects of the charity, and it has provided that rules shall be made from time to time for effecting the objects there specified. These rules may be varied by the governors, with the sanction of the Bishop; and the Crown, remaining the visitor of the charity, preserves a controuling power over the rules so framed and enforced, and, accordingly, any one interested in the matter may call for and obtain the interposition of the visitorial authority to redress anything that is found to

(1) Shelford on Mortmain, 749.

be amiss in the management of the school or rules framed for this purpose. What has been done in this respect does not appear material to the construction which is to be placed upon the original letters patent; but it is material with reference to the question whether this Court can give the relief asked by this information, and whether the circumstances entitle them to relief from any quarter, and if so, to what extent.

Six sets of ordinances have been made for the government of the school: the first set was in 1592, and the last in 1851. All of them, except the second set, which was made in the year 1663, have been made with the approbation of the Bishop of Bristol for the time being. The information complains of four separate and distinct matters in the ordinances of 1851, which now regulate the government of the school. These are, first, the compulsory use of prayers in the school, which are specified in the ordinances, and which imply or assert the doctrines disapproved of, more or less, by various classes of dissenters; secondly, the compulsory attendance of the scholars at church; thirdly, the religious instruction which all the scholars are compelled to receive, which includes the Catechism appointed by the Church of England, and also the doctrines of that church; fourthly, the fact that exhibitions and pecuniary rewards and distinctions are to be conferred exclusively on persons going to the Universities of Oxford and Cambridge. In considering these ordinances, the first question is, whether these matters were within the scope of the authority of the governors and the Bishop, that is, whether they are in accordance with the original foundation. In principle, all these sets of ordinances agree; they differ, however, considerably in details, and the latter are stronger and more exclusive in their effect than the earlier. The first set is dated the 20th of June 1592. The first three rules are not material, and the fourth is to this effect: "That the scholars shall have no liberty to play within that week wherein. there is a holiday, and every week wherein there is no holiday to have licence for one afternoon only, at the discretion of the schoolmaster, if the weather so serve, and on the eve of every holiday to keep their

eligible for exhibitions shall be examined in their literary attainments, and their knowledge in religion, and that the most fit shall be nominated. The sixth and last set of ordinances was promulgated in the year 1851; and the rules with respect to the instruction to be given, and the examination necessary for obtaining an exhibition are substantially the same as those contained in the ordinances of 1827. These ordinances were within the scope and authority of the governors and Bishop: they do not constitute any violation of the original instrument upon which the charity was founded. The next question is, what is the which this Court possesses in power

such a state of circumstances with reference to this charity? The duties and authorities of this Court dealing with matters of charity are not open to much doubt or question. The Court has authority to redress a breach of trust where the objects of the founder have been perverted or neglected. It has also authority to direct a scheme to enforce a more complete attainment of these objects. The Court has a further power and authority, when the objects contemplated by the founder cannot be carried into effect, to direct the application of the revenues of the charity to promote objects in accordance with the spirit of the original foundation, the actual compliance with which has become impossible; but it has no authority to vary the original foundation, and to apply the charity assets in a manner which it conceives to be more beneficial to the public, or even in a manner which, as this Court may surmise, the founder would himself have contemplated, could he have foreseen the changes that have taken place by the lapse of time. The founder here contemplated the establishment of a Church of England school; but left all details to be provided for by rules to be made by the governors, with the sanction of the Bishop. These rules are more exclusive than was required either for the purpose of the founder, or for the benefit of the school itself; but as the founder has entrusted the discretion to them, and as this discretion has been exercised in a manner which is not a violation of their duties, if the matter rested here, I could not interfere. The complaints made by the information NEW SERIES, XXIV.-CHANC.

relate to the internal management of the school. They are exclusively the subject of visitorial jurisdiction. The visitor alone is the proper person to be applied to for the purpose of mitigating the rigour of these ordinances, and of providing that they should be revised with that fair and liberal spirit which the exigencies of society and the changes produced by them require. If, however, it appears that such an appeal has been made to the visitor, and that he has, in compliance therewith, made a regulation controuling the spirit which has prevailed in these ordinances, which regulation has not been acted upon by the governors and the Bishop, then a new question arises, and a new jurisdiction is given to this Court, to say whether the ordinances which now regulate this charity have been framed in accordance with that which has been directed by the visitor; because, if that direction has not been complied with, but rules have been made in opposition thereto, then it is possible that a breach of trust may have been committed which may call for the interposition of this Court. How far, then, is the question before me affected by the circumstances which occurred in the time of Lord Macclesfield? In 1723 seventy-eight persons residing in Sherborne, being dissenters, presented a petition to the Lord Chancellor, representing the Crown, on behalf of themselves and many other inhabitants of the town and neighbourhood, stating that the ordinances which then regulated the school excluded the children of dissenters from this school, and praying his Lordship to take the premises into his consideration, in order that the dissenters' children might have the benefit of the school. The petition was presented to the Lord Chancellor as the visitor of the school, and as having, in that character, power to reform all abuses, misapplications, or undue restraints of the charity. The petition makes no mention of the ordinances of 1697, nor is there any evidence to shew whether these were acted upon. If they were, it is singular that they were not noticed in the petition, as they certainly advance a great step upon the ordinances of 1592, and contain many things offensive to dissenters not to be found in the ordinances of 1592. Upon the hearing Lord Macclesfield, then Lord

M

Chancellor, made an order that when the scholars should assemble in the free school, in order to their going to church according to the ordinances, and the parent of any scholar amongst them should desire his child or children to go to any meeting allowed by law, the master of such free school should be at liberty to give leave to such child or children to go to such meeting accordingly. This order seems never to have been acted upon; and the ordinances subsequently made in 1799, in 1827, and in 1851, so far from having been modified to meet the spirit of that order, have by the introduction of fresh rules, conceived in a spirit wholly opposed to the order of Lord Macclesfield, rendered it impossible to be acted upon. If the ordinances of 1592 were alone in force, when that petition was presented to Lord Macclesfield, there was little except the ordinances requiring attendance at church, for the dissenters to complain of in the rules which regulated the management of the school. The most stringent was the sixth, which required that the scholars should be instructed in the sacrament of the church, and should attend the communion or be expelled the school; but this applied only to such scholars as should. be found liable by knowledge, ripeness in years and discretion, and would not, certainly, have been applied to the younger and larger portion of the scholars. But the rules promulgated since the time of Lord Macclesfield, independently of the compulsory attendance at church, render it impossible for dissenters to obtain the benefit of this charity. The order of Lord Macclesfield, although only permissive, was so far compulsory on the governors and bishop for the time being that the subsequent rules ought to have been framed by them in accordance with the spirit contained in that order, in such a manner that the master might have been enabled to exercise the discretion which Lord Macclesfield thought he ought to possess, of dispensing with attendance in the parish church in particular specified cases. If this were a case where the visitor was no longer to be found, and no means existed of obtaining his decision and judgment on the subject, I ought to reform the rules which govern this charity in accordance with the direction so

made. The Lord Chancellor, however, representing the Crown, is the visitor of this charity, and he has jurisdiction to act so as to regulate the internal management of the school as he shall deem most expedient, and in accordance with the general scope and design of the founder; he has also jurisdiction to enlarge or lessen the effect of Lord Macclesfield's order. If I have any jurisdiction, it is only to see that Lord Macclesfield's order is properly enforced in the spirit in which it was made. The Lord Chancellor however may, if he thinks fit, give me jurisdiction by making an order, defining to what extent and in what manner he considers the rule for the management of this charity ought, if at all, to be varied, restricted, or enlarged. I shall now, however, direct the information to stand over until the first seal after Trinity term, with liberty for either party to apply in the mean time. If no application is made to the Lord Chancellor, I shall know how to act. If an application is made, the manner in which the application is dealt with will either supersede my authority, or give me a jurisdiction by which I shall be able to determine what I ought to do upon this information.

Nov. 11. An application was accordingly made to the Lord Chancellor as visitor; and after some discussion the governors themselves, with a desire to release the visitorial jurisdiction from anything compulsory, undertook to give effect to the views of his Lordship, and so far to reform or qualify the statutes as to enable children of dissenters to have the benefit of the school; they accordingly re-framed the statutes, and the Lord Chancellor as visitor made some further alteration in them, and as altered they were sanctioned by the Bishop and adopted by the governors.

Mr. Lloyd, on behalf of the relators, now asked not only for the costs of the information, but also for the costs of the petition to the Lord Chancellor as visitor.

Mr. G. L. Russell.-The governors feel that both the information and petition went further than they ought in asking for a declaration that this was not a Church of England school; they regret the expense, and consider that their duty will not allow

them to assent to the payment of these costs: if, however, it is placed upon them as a direction of the Court that the costs ought to be paid out of the charity funds, they will abide by the result.

Mr. Batten, for the Bishop of Bristol, submitted, that his costs ought to be included.

The MASTER OF THE ROLLS.-On this explanation, I think the costs ought to be paid out of the funds of the charity.

LORDS JUSTICES. Nov. 9.

OTHERS, ex parte HOOK,
ANDEx parte THOMPSON,
in re THE DOVER, DEAL
AND CINQUE PORTS
RAILWAY COMPANY.

Winding-up Acts-Stay of Proceedings -Prosecution of Claim and Taxation of Solicitors' Bills notwithstanding Order to stay.

A railway company was ordered to be wound up. A claim was made before the Master, but not prosecuted. One contributory agreed to pay all debts proved before the Master, and thereupon an order was made to stay all proceedings under the winding-up order. In the same matter two solicitors obtained an order for the taxation and payment of their bills of costs. The taxation was commenced, and had not concluded when the order to stay proceedings was made :— Held, that the claimant was entitled to proceed before the Master to exhibit such proof as he might be able.

Held, also, that the solicitors were entitled to proceed with the taxation of their bills of

costs.

The order for winding up the affairs of the Dover, Deal and Cinque Ports Railway Company was made in the year 1850. In February 1851 Mr. Clifton, the surveyor of the company, and two other persons, the engineer and secretary, carried in before the Master claims against the company for business done by them respectively in their several capacities before the order for winding up was made.

The Master, not considering the evi

dence sufficient, ordered all the three claims to stand over. No further proceedings were taken by these parties; but other debts having been proved against the company, the Master made a call.

Much litigation ensued, and finally (1) Lord Londesborough was, in effect, established as the only contributory, the two others settled on the list not being in a condition to pay; and upon his Lordship undertaking to pay all the demands which had been allowed by the Master, the Lords Justices, on the 8th of May 1854, made an order to stay all further proceedings under the winding-up order.

At this time it was supposed that the claims of Mr. Clifton and the others had been abandoned.

Mr. Hook and Mr. Thompson, solicitors, opposed unsuccessfully the order for winding up. They had in their hands papers belonging to the company, on which they

claimed a lien for costs. In March 1850 the Master made an order that they should deliver up these papers; and upon their doing so, the official manager was directed to set apart sufficient money out of the first funds that should come to his hands to pay them, and he was to be at liberty to apply for the taxation of the bills. The official manager did not get funds, and did not pay the bills.

Mr. Hook and Mr. Thompson presented a petition for taxation, which was refused by Lord Cranworth, then a Vice Chancellor; but upon appeal, the Lord Chancellor (Lord Truro) in February 1852 made an order, in the matter of the winding up, for the taxation. This taxation was in course of being made, when the order of the Lords Justices staying all further proceedings interposed and stopped it.

A motion was now made, on behalf of all five persons, to be permitted to prosecute their claims before the Master.

Mr. Follett and Mr. Goodeve supported the motion, and argued that the Court would not preclude parties, without whose concurrence the order to stay proceedings had

(1) See 23 Law J. Rep. (N.s.) Chanc. 738, and other parts of the litigation respecting this company