1836.-Attorney General v. Smythies. sance, this court has an undoubted right to *interpose. The same [131] question occurred in Kerrison v. Sparrow, (a) before Lord Eldon, in which his Lordship, under the circumstances of the case, considered that he ought not to interfere; but the jurisdiction of the court was not there denied. or disputed. In Attorney General v. Johnson,(b) the objection to the jurisdiction was attempted to be raised. The defendants in that case, the corporation of the city of London, were authorized by act of parliament to do what was necessary to be done in the exercise of their duty as conservators of the river Thames; but, in that particular instance, they had assumed to themselves a right to carry on or sanction operations, which created a nuisance to the king's subjects; and the court accordingly interfered to prevent them from so exercising their undoubted legal powers. To say that this court, when it interferes in such a case, is acting as a court of appeal from the court of quarter sessions is anything but a correct representation of the fact. The jurisdiction is exercised, not for the purpose of overruling the power of others, by way of appeal from their authority, but for the purpose of exerting a salutary control over all, for the protection of the public. The allegations of fact appearing on the face of this information and bill may be pure fiction; but I am to take the record as it stands, and finding that it represents a case where, if the act proposed to be done be carried into effect, a great public mischief will be occasioned, I think the obvious result of all the authorities is, that I am bound to interfere. Mr. Wakefield then submitted that the demurrer of the defendants, the surveyor and contractors, ought at all events to be allowed. The LORD CHANCELLOR (after examining the statements in the [*135] information and bill, which referred to the proceedings of the surveyor and contractors,) said that in his opinion those defendants were all so much mixed up and identified with the proceedings of the Berkshire magistrates, that they were properly made parties, and that their demurrers also ought to be overruled. 1836; November 22, 28. ATTORNEY GENERAL V. SMYTHIES. A decree having directed the settlement of a scheme for the regulation of the hospital of King James in Colchester, and for the future application of its revenues, the court, in afterwards considering the scheme, came to the conclusion that, upon the true construction of the charter of foundation, and of the laws and statutes of the hospital, it was intended, and was essential to the proper performance of his official duties, that the master should have a proper residence within the hospital, or on the lands belonging thereto; and a reference was accordingly directed for the purpose of ascertaining the best mode of providing such residence; but the court declined to make any specific declaration that it was the duty of the master to reside, that being a matter falling within the jurisdiction of the visitor. 1836.-Attorney General v. Smythies. THIS was an appeal from an order of Lord Langdale, whereby it was declared that according to the true construction of the charter, the master of the college or hospital of King James, in the suburbs of Colchester, ought to reside in such college or hospital, for the purchase of discharging the several duties of his office; and that it should be referred to the master to inquire whether there was a fit residence in the college or hospital for such master ; and if the master should find that there was not, then it was declared that such residence ought to be provided, and the master was to review his scheme with reference to this declaration. The cause is reported upon the original hearing before Sir John Leach, and upon the appeal before Lord Brougham, in 2 Russ. & Mylne, p. 717, where the substance and object of the information, the letters patent of King James I, and the laws and statutes of the hospital, together with the substance of Sir J. Leach's decree, are fully stated. [*136] *In pursuance of Sir John Leach's decree, which, in that respect was not varied on the appeal, the master made his report, approving of a scheme, the fifth article of which contained the following provisions :-"That the master for the time being, in case of his being non-resident or incapable of performing the ecclesiastical duties directed by the charter, shall duly appoint and maintain a sufficient curate for the performance of the said duties, who shall reside there, and that the said master shall allow and pay to such curate the yearly salary or stipend of 757. at the least, by half yearly payments." The cause subsequently came on at the rolls, on further directions, when the propriety of this article of the scheme underwent considerable discussion,(a) and Lord Langdale eventually made the order above stated, from which the - present appeal was brought. Mr. Wigram and Mr. Rudall, for the appeal:-The Master of the Rolls had no power, in the then state of the cause, to make the order under appeal; the matter only came before his Lordship incidentally, on the consideration of the report by which the allowance to be paid to a curate is fixed in case of the master's non-residence or incapacity to perform his clerical duties. The question with respect to the necessity of residence, was never regularly before the master or before Lord Langdale at all. The information, which was filed in the year 1830, charged, among other things, that the master was non-resident, and lived at Leominster; but though the point was thus distinctly raised on the pleadings, no notice was taken of it in the decree made at the hearing, nor was any special reference directed upon the subject. [*137] The order, besides, is founded on a misconstruction of the language and provisions of the charter. There is nothing in the letters. patent or by-laws, which renders the residence of the master imperative. Such of the duties imposed upon him, as would at first sight appear to imply or demand his personal attendance and supervision, are uniformly governed and (2) 1 Keen, 289, where the argument and judgment at the rolls are fully reported. 1836.-Attorney General v. Smythies. controlled by a clause authorizing their performance either by the master or a sufficient deputy; and it is difficult to imagine any rational purpose which could be served by requiring the master, contrary to what has been the usage of former masters, for a long series of years, to reside upon the spot, and personally to superintend the conduct of the alms-people. It is impossible he should reside in the hospital, indeed, for there is no dwelling fit for his reception within its walls, or even upon the estate. So long as the alms-people have their apartments kept in sufficient repair, and receive their annual allowances of 52s. a year each, they have no ground of complaint; and if the master chooses to manage and superintend the estates and buildings of the hospital by the aid of a receiver and surveyor, for which of course he must pay out of his own pocket, who has a right to object? No one can have so deep an interest in the judicious administration of the property as himself, since he, according to the decree of Lord Brougham, which stands unimpeached, is entitled to every shilling of the income, ultra the 52s. a year to each of the five poor persons, and the necessary outlay for repairs. Independently of this objection, the question, if there be a question, ought not to be entertained here. For it is strictly and peculiarly within the province of the visitor of the college, to decide how far, under the circumstances, residence may be proper or obligatory, and to determine the amount of the allowance, which, in the event of his non-residence, the master [*138] ought to pay to a curate or deputy, if required. These are all questions especially under the visitor's jurisdiction, with which this court has no right to interfere. So far, therefore, as they involve matters connected with the master's official situation as head of the college, they are to be settled by the personal interposition of the Lord Chancellor, the visitor specially appoint ed by the charter; so far as they relate to his ecclesiastical functions, as incumbent of St. Mary's in Colchester, they must be regulated by the ordinary. Case of St. John's College, Cambridge,(a) Attorney General v. Pricc,(b) Attorney General v. Middleton, (c) Attorney General v. The Earl of Clarendon, (d) Attorney General v. Dixie, (e) The Berkhamstead School Case.(g) Even, however, if the court had a discretionary power to interpose, the present is not a case in which the court ought to exercise it. Why should it not be left to the Lord Chancellor as visitor, sitting in camera, to dispense with or enforce residence as he shall approve, according to the exigency of times and circumstances? No special case is made to show that residence is proper, much less indispensable, or that the charity and its property have been in any respect prejudiced, in consequence of the non-residence of the master. No one has addressed any complaint or remonstrance on the subject to the visitor; although in point of fact, the master has for a great number of (a) 4 Mod. 233. Duke, 243. (d) 17 Ves. 491. VOL. II. (b) 3 Atk. 108. (e) 13 Ves. 519. (c) 2 Ves. sen. 327. 1836.-Attorney General v. Smythies. years, ceased to reside in Colchester, or its neighborhood, and no official residence is provided for him there. Sir W. Horne and Mr. O. Anderdon, for the relators, and the [*139] Solicitor General and Mr. Wray, for the crown, *contended that the order was substantially right, although it had perhaps gone further than was necessary, in directing that a residence should be provided for the master within the precincts of the hospital. November 28.-The LORD CHANCELLOR :-The real question raised by the appeal was, whether the master ought or ought not to reside, and whether part of the charity funds ought or ought not to be applied towards providing a residence for him. The information charged that the master did not reside, but prayed no relief upon that subject; it prayed, however that a scheme might be approved for the future support and maintenance of the poor. The defendant, by his answer, admitted that he did not reside. The decree, as corrected by Lord Brougham upon the appeal, is confined to declaring the right to the 5000l. received from the barrack department, and to a scheme for the due regulation of the charity and the management of the estate. The master, by his report, approved of a scheme which is silent as to the residence or non-residence of the master of the college; but which provides, by the fifth article, that in case the master shall be non-resident, or incapable of performing his ecclesiastical duties (not referring to any duties as master of the college,) 751. per annum shall be paid by him to a resident curate, for the performance of those duties. Upon the cause coming on for further directions at the rolls, the [*140] court made an order declaring, &c. His lordship here stated the sub stance of Lord Langdale's order, and continued: In the principle which is the foundation of this declaration and direction of the Master of the Rolls, I entirely agree. I have no doubt whatever that the non-residence of the master is an abuse. I mean that it is inconsistent with the object of the appointment, and incompatible with the duties of the office. In the reasons I shall give, I do not intend to express any opinion whether the present master may or may not have any sufficient excuse to entitle him to special exemption from this general rule. The endowment is for the support of the college, and of the master and poor who shall exist and be maintained in the same. The master is appointed, that the property of the college may be better governed and expended. He is to have the cure of souls of St. Mary's. He is to celebrate divine service, to preach, and to administer the sacrament, by himself or some sufficient minister or curate. The poor are to receive 52s. per annum each, through the hands of the master of the college or his assignees. He is to have power to elect and remove the poor. The revenues are to be applied for the support of the master 1836.-Attorney General v. Smythies. and poor of the college, and for the support, maintenance, and repairs of the houses, tenements, and possessions of the college. By the laws and statutes made in pursuance of the powers given by the charter, the master is to keep and maintain all the houses and buildings of the hospital well and sufficiently repaired, so that they may be fit and convenient for the habitation of the master and poor. He is to provide a strong chest, to stand in the hospital *house belonging to the master. The [*141] poor are to be obedient to the master; they are not to be absent from their residences, or to take any lodger into their houses, without the license of the master or his deputy. That the authors of this charter, and of these laws and statutes, considered that the master was to be resident, is, I think, abundantly clear. Duties of personal trust and confidence are imposed, and a residence is provided. All this manifestation of intention, however, is said to be superseded, because the charter alludes to the sacrament being possibly administered by some other minister or curate, although it does not allude to any deputy for any other purpose, and because the statutes provide that the master may depute to another the power of giving license to the poor to absent themselves from their houses. If any thing were wanting to confirm the evidence of intention that the master should reside, it would be the permitting a deputy to be employed in those two duties only, out of the many which are imposed upon the master. The meaning clearly is, that if the master should be prevented from personally administering the sacrament, he must find another minister to perform that duty, so that, at all events, it may be performed; and that the master may depute to another the power of giving leave of absence, for a day, to the poor, who would otherwise, in the accidental absence of the master, being incapable of leaving their residence. Upon this point I have no doubt, and this is the whole substance of the appeal. If, then, the master is to reside, it is clear that, in administering the funds, the first object will be to provide a proper residence for him. What has become of the *residence which once existed does not appear, [*142] and, indeed, it does not appear that there is not, at this moment, a pro per residence. I think, therefore, that the inquiries upon this subject are properly directed; but to enable the court to act upon the result of those inquiries, I think that the master should inquire what will be the best mode, and what will be the expense of providing such a residence, and in what manner, and out of what funds, such expense ought to be borne. The only doubt I have had upon the order at the rolls, is with respect to the declaration which prefaces this inquiry; and I think the object may be correctly obtained by some alteration in that part of the order. This college is a corporation, with a visitor appointed by the charter, who is to inspect and visit the college, and the master and poor, and the state, order and government of the college. To call the master into residence, if impro |