to view the estates, and take care that the same were kept in good repair by the tenants; with a declaration, that it should not be lawful for the trustees, during forty years, to cut timber, except such as should be wanted for the necessary repairs of mills, &c., and other appurtenances belonging to the estates, and except such young slabs and tillers in the woods in Hertford, as should be necessary for selling the underwood; and after the expiration of the forty years, then that the trustees should have power to cut as they should think fit, and pay the produce to the said rector, &c. of Exeter College, as a fund for the augmentation of the library. It was held on an information being filed by that college that by the deed, the estates were given as one fund for the benefit of two distinct institutions-the whole to be managed for the benefit of both, in a due course of provident ownership; that the trustees were not restrained, after the expiration of the forty years, from cutting timber for the purposes of repairs; nor from cutting timber in one part of the estates for repairs in another part; nor from selling timber when cut, and applying the produce in necessary repairs, so long only as they cut no more timber on the whole property than the repairs on the whole property required; and that the power of cutting young slabs and tillers still continued, with the qualification annexed (i).

8. Of the alienation of rights of patronage.] There are several instances in which the patronage of schools originally reserved to an individual and his heirs, has been aliened and enjoyed by the alienee (j).

The patronage of the grammar-school of Wotton-underEdge, was granted by letters-patent of James I. to Lord Berkeley, and the heirs of his body, and in default of such issue, to the lord of the manor of Wotton-under-Edge, for the time being. Lord Berkeley granted the patronage to a person named Smith, and his heirs; and in a suit afterwards

(i) Attorney General v. Geary, 3 Grammar Schools, Vol. I. p. 857, Mer. 513. Vol. II. pp. 299, 316.

instituted in chancery, respecting the charity generally, to which Lord Berkeley was a party, it was decreed, that the heir of Smith, who claimed by virtue of the alienation, was entitled to the patronage (k).

In the case of the Attorney General v. the Master of Brentwood School (1), Sir John Leach, M. R., thought it questionable whether a personal trust of such a nature as the patronage of the school could be the subject of alienation, and accordingly directed a case upon that point for the opinion of the Court of King's Bench.

By the letters-patent founding the school (m), it was granted to "Sir A. Browne, (the founder,) and Joan, his wife, and the heirs of the said A. B.; that the said A. B. during his life, and after his decease the said Joan (if she should survive) during her lifetime, and after their decease, the heirs of the said A. B. and the heirs of the same heirs should be undoubted patrons of the said school, and that the said school should be altogether of the patronage and free disposition of the said A. B. during his life, and after his decease, of the said Joan during her life, and after the decease of the said Joan, of the heirs of the said A. B. as aforesaid; and that all and singular the schoolmasters of the said school should be named and perfected by the free disposition of the said A. B. during his life, and after his decease, by the said Joan during her life, and after their decease, by the free disposition of the heirs of the said A. B., and the heirs of the same heirs, by deed sealed for ever; and that every schoolmaster so named and perfected, should hold the said school without any other presentation, institution, or investiture to be therefore made for the term of his life." The guardians of the school were to be perfected by the like nomination and disposition of the said respective parties, and to be removable only at the will of the patron of the school for the time being, according to the orders and statutes. The letters-patent further declared, that the said school should be altogether donative and collative,

(k) See 17th Report of Commissioners of Charities, 341-347.

(7) 1 Mylne & Keen, 393, 394. (m) Ante, pp. 621-623

and not presentative; yet that if the school be deficient of a schoolmaster or guardian for two months, and the patron should be informed of it, and should have been remiss in making the proper nomination, and should not have named a fit person for the space of another month, it should be lawful for the bishop of London for the time being, within one month next following, to constitute and perfect a fit person to be schoolmaster or guardian, for that time only.

The right of patronage had been the subject of several conveyances, and in 1752, the manor of Southweald, "the patronage and right of placing the schoolmaster in Brentwood school, and the gift and power of placing poor people in the almshouses," were conveyed to an ancestor of the party who exercised the rights of patron at the institution of the suit. The right was claimed either under the above conveyance, or as appurtenant to the above manor, which had always been held by the persons exercising the rights of patronage.

It was contended, that the patronage of the school could not be aliened, and several cases were cited for showing, that the right of foundership is incapable of alienation (n).

The Court of King's Bench certified their opinion, that the right of appointing the master of the said grammar school, and the wardens of the lands, tenements, and possessions of the same school, vested in the heirs of A. Browne, the founder of the said school, by the said letters-patent, and was in point of law, capable of alienation (o).

It is laid down by Sir F. Moore, "that an advowson in gross, a way or passage, matters of pleasure, as license to hunt in a park, a seignory pro fealty only, &c., cannot be granted to a charitable use; but they may be released to a charitable use, or sold, and the money provenient, disposed

(n) Magdalen College case, 11 Rep. 77 a, 78 a; Englefield's case, 7 Rep. 13 a; Moore, 322; Co. Litt. 99 a; Br. Abr. Corodies, 5; Case of Earldom of Oxford, Sir W. Jones, 123; Attorney General v. Rigby, 3 P. Wms. 145.

(0) Attorney General v. The Master, &c. of Brentwood School, 3 B. & Adol. 59-77. In King v. Baylay, 1 B. & Adol. 761, it was held, that a prebend might be aliened and annexed to an archdeaconry.

to a charitable use." Although an advowson may be granted upon condition, that so often as the church shall be void, a poor scholar of a particular college shall be preferred (p).

It was held in a recent case, that an advowson may be the subject of a charitable gift, but that the Court of Chancery would not permit the trustees to present, without making such profit of the presentation, as is allowed by law (9).

By the 6th section of the statute of 9 Geo. IV. c. 94, for rendering valid bonds, covenants, and other assurances for the resignation of ecclesiastical preferments in certain specified cases, it is declared, that the act shall not extend to any case where the presentation, collation, or gift, shall be made by any company or any feoffees or trustees for charitable or other public purposes, or by any other persons not entitled to the patronage of such spiritual office as private property (r).

(p) Duke, 142 (137).

(r) See Shelford's Real. Prop.

(q) Attorney General v. Ward, 7 Stat. 174-177, 3rd ed. Law Journ. Chanc. 119.

CHAPTER VII.

OF THE APPOINTMENT AND REMOVAL OF PERSONS CONNECTED WITH ELEEMOSYNARY FOUNDATIONS

AND CHARITIES.

SECT. I.-Of College Elections.

II. Of the Election of Curates and Chaplains by Inhabitants.

III. Of the Appointment and Removal of Schoolmasters. IV. Of the Appointment and Removal of Trustees generally.

V. Of the Appointment and Removal of Ministers and Trustees of Dissenters' Establishments. VI. Of the Nomination of Objects by Trustees.

SECTION I.

Of College Elections.

THE questions relating to the election and amotion of the members of colleges, which are usually decided by the visitors appointed by the respective founders, have already been considered (a). It remains, however, to notice generally some cases upon that subject, which have been decided by the lord chancellor as visitor in right of the crown, and other visitors, and which turn upon the construction of the particular statutes of colleges.

The stat. 33 Hen. VIII. c. 27, after reciting, that by the common law, all assents, elections, and grants, by the dean, warden, provost, master, president, or other governor of any college or other corporation, with the assent of the majority,

(a) Ante, pp. 330-397.