ordered to stand over, for the purpose of ascertaining whether the attorney general would consent to a reference; but it would be refused where the question in the cause turns on the construction of a will (v): The jurisdiction of the Court of Chancery to give effect to an award confirmed by the decree of the court, in the case of a charity, was considered doubtful; but the renewal of a lease upon the terms of an award having been twice directed by the court, was again enforced (w). 2. When the Court of Chancery has no jurisdiction.] We have already seen that the Court of Chancery has no jurisdiction over charities established by charter, if the visitors or governors appointed to regulate it are not entrusted with the management of the revenues; but that the court has jurisdiction over governors, so far as they are the trustees of the revenues (x). The cases in which the governors or visitors are said (v) Attorney General v. Fea, 4 Madd. 274. (w) Attorney General v. Clements, Turn. & Russ. 58. See Attorney General v. Cholmley, 2 Eden, C. C. 304; Ambl. 510. (x) See ante, 292, 296; 334, 336. On an information, at the relation of the brethren and sisters of St. Catherine's Hospital, praying to be quieted and relieved. It appeared that the hospital was founded by Queen Eleanor, who made rules for its government, and appointed a certain allowance for the brothers and sisters. The revenues having much increased, they insisted that their allowances ought to be so too; and complained of several acts of the master in renewing leases, &c. without the consent of the brothers, and suspending them. The master pleaded that the Queens of England were patrons and visitors of the hospital; and showed, that it having once vested in a queen consort, who afterwards became a dowager, the right remained in her, and did not go over to the queen consort; and that where there was no queen, the kings had visited; and insisted that the Court of Chancery had no jurisdiction, but that the visitation belonged to the queen dowager. The lord keeper adopted the rule established in Philips v. Bury (Skinn. 447), that where once a visitor had given judgment, no court could interfere; but thought that this case had nothing to do with the judgment of the visitor, but to assist it; and that there was no pretence for removing the master, nor controverting the mismanagement of the hospital.-Attorney General v. Sir J. Butler, Skinn. 644. not to be amenable to the Court of Chancery, must be confined to such governors as have the power of government only, and not extended to those who have the legal estate, and are entrusted with the receipt of the rents and profits: for it would be of the most pernicious consequence imaginable that any person, intrusted with the receipt of rents and profits of a charity, should be unaccountable for their receipts and for a gross misapplication (y). Where the governors of a charity are also visitors, they are subject and accountable to the Court of Chancery, so far as relates to the estates of the charity (z). The visitatorial power may with propriety be called upon to interpose where there is any substantial deviation from the principle and purpose of a charitable institution. But where an information represents the course of education and internal discipline of the school as not entirely agreeable to the rules laid down by the founder, but the governors are expressly authorized to alter those rules; such alterations as have been long known and acquiesced in will be presumed to have been made by their authority, though the precise order for it does not appear. Whether this or that book is to be read in a particular form-whether the boys are to go to school at this or that hour, and the like-will be left to the governors and masters to determine (a). So where the visitor has generally been one of the governors who have acted as trustees in the receipt of the rents and profits of the charity, the court has jurisdiction over them (b). Where a party in a plea to a suit denies the jurisdiction of the court, on the ground that there is a visitor, it must be clearly shown that a visitor is appointed by the donor, and that his The Case of Sutton Colefield, Duke, 68 (642); Hynshaw v. The Mayor, &c. of Morpeth, Duke, 69, (242); Eden v. Foster, 2 P. Wms. 326; Attorney General v. Corporation of Bedford, 2 Ves. sen. 505. (z) Sutton Colefield, Duke, 68, (642); Attorney General v. Lock, 3 Atk. 165. (a) Attorney General v. Earl of Clarendon, 17 Ves. 507. (b) Attorney General v. Dixie, 13 Ves. 539. power extends to the subject matter in dispute (c), and relators, in answer to such a plea, will be allowed to state other statutes for the purpose of contradicting the plea (d). Pending an information respecting a charity, the surplus rents cannot be applied by an individual, nor can governors be regularly appointed without the leave of the court, and governors so elected will be removed by the court (e). Where trustees of a charity have discretionary powers, the court will not interpose, unless they act corruptly. Thus where lands were vested in the Governors of Harrow School, upon trust to employ all the profits yearly towards repairing the common highway from Edgware to London, when, and as often, and in such manner as the governors should think fit; and if thereafter it should happen that the said highway should be sufficiently amended, or not require the whole profits to be laid out, as often as that should happen, the governors should lay out on the road from Harrow to London, the whole or so much as should remain, after repairing the Edgware road: the Edgware road having the assistance of two turnpike acts, and the Harrow road being in very bad repair, an information was filed, on the ground that the profits expended on the Harrow road ought to have been laid out on the Edgware; but Lord Hardwicke refused to interfere, as the expenditure was left to the discretion of the trustees, who had not acted partially and corruptly (ƒ). An information in the name of the attorney general cannot be sustained, where the trust is of a private nature, not coming within the denomination of a charitable use or trust (g). Where a school-house had been erected on the waste, by the voluntary contributions of the inhabitants; and the lord of the manor afterwards conveyed the land to some of the (c) Green v. Rutherforth, 1 Ves. sen. 470. See ante, p. 395. (d) Attorney General v. Talbot, 3 Atk. 662. (e) Attorney General v. Dixie, 13 Ves. 535-538. (f) Attorney General v. Gover nors of Harrow School, 2 Ves. sen. 551. (g) Attorney General v. Whorwood, 1 Ves. sen. 534, ante, p. 87. Attorney General v. Brereton, 2 Ves. sen. 426; Attorney General v. Middleton, Ibid. 328. principal inhabitants, to the intent that they might have a school on a dispute between the surviving trustees and the inhabitants, respecting the right of nominating the schoolmaster, it was held, that as it was not a free school, nor a charity within the 43 Eliz. c. 4, that the inhabitants had no right to sue in the name of the attorney general (h). It seems that parishioners and inhabitants, having the right to nominate a curate, cannot sue in the attorney general's name, merely with respect to the right of election; but must proceed by bill (¿). 3. When the attorney general is a necessary party.] The attorney general is a necessary party to informations respecting charities, because the king, as parens patriæ, superintends the administration of all charities, and acts by the attorney general, who is his proper officer in this respect (k). Where a testator bequeathed the sum of 5,000l. in trust, to be transferred into the names of the officers of an academical institution established at York, chiefly for the instruction of dissenting ministers, who were to stand possessed thereof upon certain trusts therein mentioned; and the testator empowered such officers, within twelve months, to make such further rules for the distribution of the interest, and for perpetuating the trusts as they should judge necessary. On a bill by the persons who held the offices mentioned in the will at the testator's death against his executors for payment of the legacy, who submitted that the attorney general ought to be a party, the court would not allow the plaintiff to receive the legacy, but required the creation of a proper and permanent trust, and directed the cause to stand over, with leave to make the attorney general a party, in order that he might attend before the master when the case was sent to him to settle the scheme (1). (h) Attorney General v. Hewer, 2 Vern. 387. (i) Attorney General v. Parker, 1 Ves. sen. 43; S. C. 3 Atk. 576. See 10 Ves. 335; 14 Ves. 7; Davis v. Jenkins, 3 Ves. & B. 154. (k) Wellbeloved v. Jones, 1 Sim & Stu. 43. (1) Ibid. 40. Where it appeared, in a suit by an heir at law claiming a resulting trust, that there was a disposition in favour of a charity, the bill was ordered to be amended, by making the attorney general a party on behalf of the charity (m). The attorney general should be made a defendant in a suit by the next of kin of a testator, to set aside a gift within the statute 9 George II. c. 36 (n). Where a decree in a cause had been made on bill and answer, and on appeal, the Lord Chancellor was of opinion, that the attorney general ought to have been a party to the suit, the petition of appeal was ordered to stand over, with liberty for the plaintiffs to amend their bill, by making the same a bill and information, or an information only, as they should be advised (o). But it has been held not to be necessary that the attorney general should be a party where a legacy is given to the treasurer, or other officer of some established charitable institution, to become a part of the general funds of that institution; and such exception is reasonable, for the attorney general can have no interference with the distribution of their general funds (p). It was held that the attorney general was not a necessary party to a suit between the members of a voluntary society, formed for the purpose of providing, by a weekly subscription, for such of the members as should become necessitous, and their widows, because it was in the nature of a private charity (q). So in a bill for an account, where a legacy was given to a charity, it was referred to the master to take the accounts, although the attorney general was not a party (r). Where a legacy of stock was bequeathed to the rector, churchwardens and overseers of the poor of a parish, upon (m) Cook v. Duckenfield, 2 Atk. 563. (n) Kirkbank v. Hudson and the Attorney General, 7 Price, 212. (0) President of Magdalen College, Oxford v. Sibthorp, 1 Russ. 154. (p) Wellbeloved v. Jones, 1 Sim. & Stu. 40. 38. (q) Anon. 3 Atk. 277: (r) Chitty v. Parker, 4 Br. C. C. |