pleadings upon them seem not to touch the present point, but to turn chiefly upon this, whether they are to be accounted offices of a public or private nature. Gibs. 1110.

Thus in the case of The King against the bailiffs of Morpeth. A [335] mandamus was granted, to restore a man to the office of underschoolmaster of a grammar school at Morpeth, founded by king Edward the sixth: the same being of a public nature, being derived from the crown. Str. 58.

And the distinction seemeth to be this: If they shall be deemed of a public nature, as constituted for public government; they shall be subject to the jurisdiction of the king's courts of common law; but if they be judged matters only of private charity, then they are subject to the rules and statutes which the founder ordains, and to the visitor whom he appoints, and to no other. L. Raym. 5.

In the case of colleges in the universities, whether founded by the king or by any other, it seemeth now to be settled, that they are to be considered as private establishments, subject only to the founder, and to the visitor whom he appointeth; and it doth not seem easy to discern any difference between schools and colleges in this respect. (h)

are not vi

10. H. 1725. Eden and Foster. The free grammar school of Governors Birmingham was founded by king Edward the sixth, who endowed eo nomine the said school, and by his letters patent appointed perpetual go- sitors. vernors thereof, who were thereby enabled to make laws and ordinances for the better government of the said school; but by the letters patent no express visitor was appointed, and the legal estate of the endowment was vested in these governors. After a commission had issued under the great seal to inspect the management of the governors, and all the exceptions being already heard and over-ruled, it was now objected to this commission, that the king having appointed governors, had by implication made them

The founder of Woodbridge Free school directed the heirs male of his feoffees to appoint a master; and on their default, that the right of election should be in the curate and churchwardens, and six chief inhabitants. The chief inhabitants at the time of the foundation, and the heir of the last surviving feoffee, could not be discovered, so that the lord Chancellor became visitor in right of the crown. Two persons were elected at the last vacancy; and on petition the chancellor declared both elections void. He doubted the visitor's power to elect a master, but directed a reference to the attorney-general, to report what directions or alterations would be proper, as to the mode and right of election, and in the orders, &c. of the school; and what to him should seem most conducive to the interests of the objects of the charity and the furtherance of the donor's intentions. Atto. Gen. v. Black, 11 Ves. 191.

(h) For the general power and jurisdiction of a visitor, see Colleges, 6, 7.; and hospitals, 3.; Charitable Uses.

visitors likewise; the consequence of which was, that the crown could not issue a commission to visit or inspect the conduct of these governors. The matter first came on before lord chancellor Macclesfield, and afterwards before lord King, who desired the assistance of lord chief justice Eyre, and lord chief baron Gilbert; and accordingly the opinion of the court was now delivered seriatim, that the commission was good. 1. It was laid down as a rule, [336] that where the king is founder, in that case his majesty and his successors are visitors; but where a private person is founder, there such private person and his heirs are by implication of law visitors. 2. That though this visitatorial power did result to the founder and his heirs, yet the founder might vest or substitute such visitatorial right in any other person or his heirs. 3. They conceived it to be unreasonable, that where governors are appointed, these by construction of law, and without any more, should be visitors, should have an absolute power, and remain exempt from being visited themselves. And therefore, 4. That in those cases where the governors or visitors are said not to be accountable, it must be intended, where such governors have the power of government only, and not where they have the legal estate and are intrusted with the receipt of the rents and profits (as in the present case); for it would be of the most pernicious consequence, that any persons intrusted with the receipt of rents and profits, and especially for a charity, though they misemploy never so much these rents and profits, should yet not be accountable for their receipts; this would be such a privilege, as might of itself be a temptation to a breach of trust. 5. That the word "governor" did not itself imply visitor; and to make such a construction of a word, against the common and natural meaning of it, and when such a strained construction could not be for the benefit, but rather to the great prejudice of the charity, would be very unreasonable; besides it would be making the king's charter operate to a double intent, which ought not to be. And the commission

Whether the trust surviveth

on the feoffees dying away beyond the limited

number.

under the great seal was resolved to be well issued. 2 P. Will. 325.

11. The following case relateth particularly to a church; but is equally applicable to and far more frequently happeneth in the case of schools. It is that of Waltham church, H. 1716. Edward Denny, earl of Norwich, being seised by grant from king Edward the sixth, of the scite and demesnes of the dissolved monastery of Waltham Holy Cross, and of the manor of Waltham, and of the patronage of the church of Waltham, and of the right of nominating a minister to officiate in the said church, it being a donative, the abbey being of royal foundation, by his will in 1636, amongst other things the said earl devised a house in Waltham, and a rent-charge of 100l. a-year, and ten loads of wood, to be annually taken out of the forest of Waltham, and his right of nominating a minister to officiate in the said church, to six trus

tees and their heirs, of which sir Robert Atkins was one, in trust for the perpetual maintenance of the minister, to be from time to time nominated by the trustees and directed that when the trustess were reduced to the number of three, they should choose others. It so fell out that all the trustees except sir Robert Atkins, were dead; and he alone took upon him to enfeoff others to fill up the number; and now the surviving trustees (of the said sir Robert's appointment) did nominate Lapthorn to officiate; and the lady Floyer and Campion, who were owners of the dissolved monastery and of the manor, claimed the right of nomination to the donative, and had nominated Cowper to officiate there, and he was got into possession. The bill was, that Lapthorn might be admitted to officiate there, to be quieted in the possession, and to have an account of the profits. By the defendants it was amongst other things insisted, that the trustees having neglected to convey over to others, when they were reduced to the number of three, and the legal estate coming only to one single trustee, he had not power to elect others; but by that means the right of nomination resulted back to the grantor, and belonged to the defendants, who had the estate, and stood in his place: or at least the court ought to appoint such trustees as should be thought proper. By Cowper, lord chancellor; It is only directory to the trustees, that when reduced to three, they should fill up the number of trustees; and therefore although they neglected so to do, that would not extinguish or determine their right; and sir Robert Atkins, the only surviving trustee, had a better right than any one else could pretend to, and might well convey over to other trustees; it was but what he ought to have done: and it was decreed for the plaintiff with costs, and an account of profits; but the master to allow a reasonable salary to Cowper, whilst he officiated there. 2 Vern. 749.

12. By the 43 Eliz. c. 2. All lands within the parish are to Taxes. be assessed to the poor rate.

But by 38 Geo. 3. c. 5. it is provided, that the same shall not extend to charge any masters or ushers of any schools, for or in respect of any stipend, wages, rents, or profits, arising or growing due to them, in respect of their said places or employments. § 25. Provided that nothing herein shall extend to discharge any tenant of any the houses or lands belonging to the said schools, who by their leases or other contracts are obliged to pay all rates, taxes, and impositions whatsoever; but that they shall be rated [ 338 ] and pay all such rates, taxes, and impositions. § 27.

And in general, it is provided, that all such lands, revenues,

or rents, settled to any charitable or pious use, as were assessed in the 4th year of Will. & Mar. shall be liable to be charged; and that no other lands, tenements, or hereditaments, revenues,

or rents whatsoever, then settled to any charitable or pious uses, as aforesaid shall be charged. § 29.

And the reason of this distinction seemeth to be, because in that year, the sums to be charged were fixed and determined upon every particular division; lands which were then appropriated to charities being exempted out of the valuation: therefore it is no hardship upon the neighbourhood, that lands then exempted should be exempted still, for the other lands pay no more upon the account of such exemption: but if lands appropriated to charities since that time should by such appropriation become exempted, this would lay a greater burden upon all the rest, because the same individual sum upon the whole division is to be raised still.

66

[Scotland.

BY 5 and 6 Ann. c. 8. Article XXV. the tenor of the act of parliament of Scotland "For securing the protestant religion and presbyterian church government within the kingdom "of Scotland," is as follows: "Her majesty, with advice and consent of the estates of parliament, doth establish and confirm the true protestant religion, and the worship, discipline, and government of this church, to continue without any alteration to the people of this land, in all generations, and more especially the 5th act of the first parliament of king William and queen Mary, intituled Act ratifying the Confession of Faith, and settling presbyterian church government, with all other acts of parliament relating thereto; and declares, that the foresaid true protestant religion, contained in the Confession of Faith, with the form and purity of worship in use within this church, and its presbyterian church government and discipline, by kirk-sessions, presbyteries, provinces, synods, and general assemblies, shall remain unalterable, and that the said presbyterian government shall be the only government of the church of Scotland." § 5.

"The universities and colleges of St. Andrews, Glasgow, Aberdeen, and Edinburgh, as established by law, shall continue for ever; and no professors, principals, regents, masters, or others, bearing office in any university, college, or school, within this kingdom, shall be admitted to their functions, but such as shall acknowledge the civil government in manner prescribed by acts of parliament; as also at their admissions shall profess, and shall subscribe to the aforesaid Confession of Faith, and that they will conform themselves to the worship in use in this church, and submit themselves to the government and discipline thereof, and

never endeavour the prejudice or subversion of the same, and that before the respective presbyteries of their bounds. None of the subjects of this kingdom shall be liable to any oath, test, or subscription, within this kingdom, inconsistent with the foresaid true protestant religion, aud presbyterian church government, worship, and discipline; and after the decease of her majesty, the sovereign succeeding in the royal government of the kingdom of Great Britain, in all time coming, at his accession to the crown, shall swear and subscribe, that they shall inviolably maintain and preserve the aforesaid settlement of the true protestant religion, with the government, worship, discipline, right and privileges of this church. This act shall be a fundamental and essential condition of union betwixt the two kingdoms, and shall be inserted in any act of parliament for concluding the union; nevertheless, the parliament of England may provide for the security of the church of England, as they think expedient, to take place within the bounds of England, and not derogating from the security above provided for the church of Scotland; as also the parliament of England may extend the provisions contained in the articles of union in favour of the subjects of Scotland, to those of England: all laws in this kingdom, so far as they are inconsistent with the articles, shall after the union become void." 5 & 6 A. c.8. § 1-6. The act "For securing the church of England, as by law "established," viz. 5 & 6 A. c. 5., is also inserted. § 7-9.

The said articles of union, and also the said act of parliament of Scotland, for establishing the protestant religion and presbyterian church government within that kingdom, shall be for ever confirmed. § 10.

The said act for securing the church of England, as by law established; and also that of Scotland, for securing the protestant religion and presbyterian church government shall for ever be observed as fundamental and essential conditions of the union. 5 & 6 A. c. 8. § 11.

And the Scotch establishment was again confirmed on the union of Great Britain with Ireland, in these words, "And in like manner the doctrine, &c. of the church of Scotland shall remain as now by law and by the acts of union 5 & 6 A. c. 8. art. 25. established. 39 & 40 G. 3. c. 67. art. 5.]

Seats in churches. See Church.

Sees of bishops. See Cathedrals.

Select vestrp. See Vestry, in the title Church.