as revised and altered by those visitors, and that no visitor was appointed by the founder, whose heirs were extinct. The Court of King's Bench, on an application for a mandamus, refused to interfere to compel the master and fellows to declare one of the fellowships vacant, and to proceed to a new election; Lord Kenyon holding, that there was nothing incongruous to the general principles of law, to say that the power of visitation, which at the time when the charity was founded was vested in some body, should then devolve to the king, there being no other person who had any claim to it, to be exercised cy-pres to the manner in which it was exercised by the founder and his heirs; such power, though not expressly reserved to the king by the founder, yet belonging to him by operation of law. What was said by Lord Holt (v), was considered by the court decisive of the question, and, as the general convenience coincided with it, was entitled to their best consideration; therefore with no decided authority or general principle to the contrary, but with the convenience of the case and the general principles of law in their favour, the court thought they should do more substantial justice to the parties in that particular case, and to the public in general, by refusing to grant a writ of mandamus; and by referring the question to the lord chancellor, than by entertaining jurisdiction over it (w). On a petition to the lord chancellor as visitor of Trinity Hall, Cambridge, there being no heir of the founder, to declare the election of a fellow void, and to order the petitioner to be admitted, the Court of King's Bench having in a similar case declined jurisdiction, the lord chancellor heard the petition, and, upon the construction of the statutes, dismissed (v) Upon an application for a mandamus to a college in Oxford, after observing that it was a lay corporation, and then the visitation belonged to the founder and his heirs, he said, "and if he die without heirs, I take it the visitation shall go to the king (referring to (w) Rex v. Master and Fellows of St. Catherine's Hall, Cambridge, 4 T. R. 233. it. Lord Eldon considered that he acted as if the king was by the foundation special visitor. The question was, whether the petitioner was idoneus moribus et ingenio, and turned upon the construction of the word mores, which the chancellor thought signified manners as well as morals; and that it would be destructive of the very purpose of the foundation, if he were to order the fellows to elect a person (however otherwise qualified) whose manners were dissimilar to theirs, and whom the whole college had thought unfit to be elected (x). Where an addition is made to the endowment of a college of royal foundation without the appointment of any special visitor by the donor, the power of the lord chancellor, as visitor in right of the crown, will extend to the new gift. Thus where two new fellowships were added to University College, Oxford; Lord Hardwicke took cognizance of a complaint respecting them, and determined in a summary way as visitor, and would not permit the matter to proceed in the course of charity causes (y). In a case where a testatrix devised estates for founding additional fellowships and scholarships in a college, and expressly declared, that she appointed no visitor of the foun dation, but in case of any complaint arising touching the execution of the statutes presented by her, she directed that an application should be always made to the lord high chancellor or lord keeper of the great seal of Great Britain, that the same might be heard by petition, or such other summary mode as his lordship should appoint, and by him be finally determined; and a question was raised whether the king or the heir-at-law of the testatrix was the visitor of the new foundation; Lord Eldon said, the king is the visitor of the old college; and the question is, whether, if a person makes an addition to an old foundation, the visitor of that foundation does not become the visitor of the new foundation; and whether the foundress having said that she appointed no visitor, is sufficient to take from him that (x) Ex parte Wrangham, 2 Ves. Jun. 609. (y) Cited 3 Atk. 667; 1 Burr. 203. authority? His lordship had no recollection of any case on the subject, but he thought that if the king was the visitor of the old college, and they accepted an accession to it (which he doubted whether they could do without the king's consent), the king would become the visitor of the new foundation, although the testatrix had said there should be no visitor at all. His lordship thought, that the intention of the testatrix, that the lord chancellor should, under his judicial authority, have jurisdiction to hear any dispute in a summary way by petition, was void; for no individual can prescribe the mode of proceeding in the Court of Chancery, nor give the power the testatrix had attempted to give in that case (z). The Court of Chancery has no jurisdiction with regard either to the election or the amotion of the members of a body corporate of any description; and where, for want of an heir of the founder, the crown becomes the visitor of a charity, the application must be made by petition to the great seal, and not by bill or information for the removal of a governor from the corporate character, which he de facto holds (a). And even where the election of governors might be said to have been a fraud upon the court, the lord chancellor declined proceeding to their removal until a petition was presented to him in his visitatorial capacity (b); although corporations, constituted trustees, are sometimes by the decrees of the Court of Chancery divested of their trust, where it has been abused, as any other trustees would be (c). Where the electors of the masters of a free school have been designated by the founder; the visitor, even though the visitatorial power should be lodged in the crown, has no (z) Attorney General v. Master of Catherine Hall, Cambridge, Jac. Rep. 382, 392, 400. (a) Cases of Grantham School and Richmond School, cited 17 Ves. 499.. (b) Attorney General v. Dixie, 13 Ves. 519. (e) Mayor, &c. of Coventry, v. Attorney General, 7 Br.; P. C. 235, 2nd ed.; Attorney General v. Earl of Clarendon, 17 Ves. 491, 499. right to appoint a master, notwithstanding the electors have made two void elections; the lord chancellor, however, as visitor in right of the crown, will provide for the interim management of the school; and refer it to the attorney general, to report what directions or alterations, touching the mode of election, may be necessary (d). By a private act of Parliament for regulating Bolton School, the number of trustees was limited to twelve, of whom seven were to constitute a quorum; and there was a clause in the act, by which it was enacted, that if any of the constitutions or provisions in the act should be found inconvenient or impracticable, the trustees might apply by petition to the lord chancellor, who might, in a summary way, vary such constitutions or provisions. It having been found impracticable to assemble seven out of the twelve trustees, all of them except two, applied to the lord chancellor, either to increase the number of trustees to sixteen, or to limit the quorum to five only. But the lord chancellor thought that was not within his jurisdiction, which, though it might extend to varying bye-laws or particular provisions, did not comprise a power to alter the general constitution of the trust itself, and therefore that the application must be made to Parliament (e). Where the heir of a founder of a charity is visitor, but has been found a lunatic by inquisition, the right of visitation during the lunacy devolves on the crown, to be executed by the lord chancellor; who, on a petition presented to him in his visitatorial capacity, will give directions for the appointment of a schoolmaster, and for the removal of governors improperly appointed, and for appointing others, and for the general regulation of the charity (ƒ). In cases in which it is stated and not controverted, that the crown is the visitor, the lord chancellor, if the case is made out, in point of fact, that any abuse exists, will apply the (d) Attorney General v. Black, 11 Ves. 193. (e) Ex parte Bolton School, 2 Br. C. C. 662. See Attorney General v. Foyster, 1 Anstr. 118. (f) Attorney General v. Dixie, 13 Ves. 519. proper remedies. But the lord chancellor, will not enter into the merits of a petition unless he is satisfied, in the first instance, that the crown is visitor. A clear undisputed case must appear upon the face of the petition, showing that the crown is the visitor; when the lord chancellor, as representing the crown, is called upon to remedy an abuse in a charity, he will not go into a controverted case for the purpose of establishing the fact that the crown is the visitor (g). If, on an appeal to the lord chancellor as visitor of a college in right of the crown, it appears that the crown has any direct interest in the question in dispute, as a right to fill up a vacancy which has occurred, the attorney general must appear on behalf of the crown. In the exercise of visitato rial jurisdiction, the lord chancellor is not bound by any regular and exact forms of proceeding; but the parties may offer to the consideration of the visitor any thing which they may think pertinent and proper (h). The lord chancellor has power to award costs on petitions to him as visitor; and in a case which arose between the fellows of a college, relative to the election of a president, the petitions having been dismissed, the costs were ordered to be paid out of the funds of the college (i). The power of visitation exercised by the lord chancellor is not part of his equitable jurisdiction, but in his personal character; and therefore, where an action had been brought by a solicitor for the amount of his costs incurred respecting an application to the chancellor as visitor of a charity of royal foundation, and the usual order had been made under the statute 2 Geo. II. c. 23, s. 23, for referring such bill to be taxed, it was held, that the proceeding did not come within that act, which only contemplates proceedings in a court of law or equity (k). But where a petition had been presented in the year 1813, to the lord chancellor as visitor of a college in right of the crown, touching the same matters as were (g) In re Garstang Church Town 19. School, 1 Aug. 1829, 7 Law Journ. Chanc. 169, 172. (h) Case of Queen's College, Jac. (i) S. C. Jac. 47. See 2 Swanst. 532. (k) Ex parte Dann, 9 Ves. 547. |