and superintendence of the foundation boys. in their grammar school; and the said dean and chapter, duly assembled, have resolved that he is unfit and unworthy to continue in the office of master of the grammar school of the said cathedral church of Rochester, and that he hath by such his misconduct as aforesaid forfeited all the rights, advantages, privileges and emoluments of that office, and have resolved and ordered that he be forthwith amoved, removed, deprived, and displaced of and from the office of master of the said grammar school, and of and from all houses, lands, profits, emoluments, commodities, advantages, and appurtenances whatsoever to the said office in anywise incident, belonging or appertaining. Now, know ye, that we the dean and chapter, &c. have, by our whole and mutual consent and agreement, deprived, &c., and by these presents, for ourselves and our successors, do deprive, &c. the said R. Whiston of and from the said office and place of upper or head master of the King's or grammar school of and belonging to the said cathedral church of, &c. and of and from all houses, lands, fees, stipends, allowances, perquisites, payments, sum and sums of money, augmentations, pensions, profits, emoluments, commodities, rights, liberties, claims, advantages, and appurtenances whatsoever to the said office and place incident, belonging, or in anywise appertaining, or which have now, or at any time heretofore have been had, held, accepted, used, taken, or enjoyed." Three questions arose on the motion,— first, whether the Court had jurisdiction to adjudicate on the matter; secondly, whether the dean and chapter were trustees, in the common acceptation of that term, for the head master of the school; and, thirdly, if his office came within the definition of a trust, whether the plaintiff had been properly removed from it. The Solicitor General and Mr. W. D. Lewis, for the plaintiff, contended that the relationship of cestui que trust and trustee was established between him and the dean and chapter. The school was not a component part of the cathedral, but merely attached to it, and the support of it was one of the conditions upon which the cathedral held its endowment. By relation of this con dition a trust was raised. Neither the upper nor lower schoolmaster was a member of the corporation formed by the dean and chapter; nor was either of them included in the term "Ministri," used in the statute 'De corrigendis excessibus' (2), under which the present head master had been removed. The term ministri meant and was applicable only to the lay clerks or servants of the church, or "ecclesia." In the various statutes relating to the schoolmasters they were named "informatores grammatici," and distinguished from the ministri: as in the statutes' De residentio,' ' De vestitu,' 'De juramento,'' De vestibus,' &c., where they were thus mentioned " quam ministri, quam informatores." In the statute ، De stipendiis' they were included and named 'quam superiorum et inferiorum, informatorum grammaticorum, quam aliorum ministrorum," &c. case. Mr. Roundell Palmer and Mr. J. H. Law, for the dean and chapter, submitted that the Court had no jurisdiction to interfere in the internal arrangement of the cathedral; that the dean and chapter had the power of removal; and that a proper cause of removal existed in the present If the plaintiff was aggrieved he ought to have applied to the visitor; and if the latter would not interfere, a writ of mandamus against him would have been granted by the Court of Queen's Bench. The dean and chapter were a spiritual corporation, amenable only to their Bishop, as visitor. They held their lands in frank almoigne, a spiritual tenure wholly distinct from a trust or a charity. They relied chiefly upon the case of The Attorney General v. Magdalen College, Oxford (3). The Solicitor General replied. Reference was made to the statute 3 & 4 Vict. c. 113. (4), and the following cases (2) Ut in ecclesiâ nostrâ morum integritas servetur, statuimus et volumus, ut si quis minorum canonicorum clericorum aut aliorum ministrorum in levi culpâ deliquerit arbitrio decani aut eo absente vice-decani corrigetur. Sin gravius fuerit delictum(si justum judicabitur) ab iisdem expellaturà quibus fuerit admissus. (3) 10 Beav. 402; s. c. 16 Law J. Rep. (N.s.) Chanc. 391. (4) The Cathedral Trusts Act. were cited and commented on in the argument and judgment:— Philips v. Bury, 2 Term Rep. 346. 52. The Attorney General v. Wimborne School, 10 Beav. 209; s. c. 16 Law J. Rep. (N.s.) Chanc. 313. The Dean of York's case, 2 Q.B. Rep. 1; s. c. nom. The Queen v. the Archbishop of York, 10 Law J. Rep. (N.S.) Q.B. 306. The King v. the Chancellor of Cambridge University (Frend's case), 6 Term Rep. 89; and Duke on Charitable Uses, p. 333. The King v. the Bishop of Ely, 1 W. Black. 83, and 2 Term Rep. 338. The Bishop of Carlisle's case, 2 Burn's Eccl. Law, Dean and Chapters,' 115 (6th edit.). The King v. the Dean and Chapter of Rochester, 3 B. & Ad. 95. The Dean and Chapter of Dublin v. the King, 1 Bro. P.C. 73. The King v. Gaskin, 8 Term Rep. 209. Doe d. the Earl of Thanet v. Gartham, 1 Bing. 357; s. c. 8 B. Mo. 360; 2 Law J. Rep. C.P. 17. Dr. Walker's case, Cas. temp. Hardw. 212. Dr. Bentley's case, Fortesc. 202; s. c. 2 Ld. Raym. 1334. The King v. the Bishop of Chester, 1 W. Black. 24; s. c. Wil. K.B. Rep. 208. Lord Montague v. Dudman, 2 Ves. sen. 399. Ex parte Smyth, 5 Nev. & M. 145; The Attorney General v. Christ's Hos- The Fremington School case, 10 Jur. 512. sen. 78. (5) In Dampier's report of this case it is stated that Mr. Dale was restored by the visitor to his fellowship, with all emoluments. The Attorney General v. Munby, 1 The King v. the Master and Fellows of Aug. 9.-WIGRAM, V.C. delivered the following judgment:-At the close of the arguments in this case I recognized the undoubted jurisdiction of this Court in all cases of trust, in the sense in which that word is used in this Court, in the ordinary case of trustee and cestui que trust. The first question to be determined in this case is, whether the relative positions of the defendants and of the plaintiff are those of trustee and cestui que trust. That this is the first question to be determined is manifest from the reasoning of the Court in all the cases, beginning with Philips v. Bury and Green v. Rutherford down to and including The Attorney General v. Magdalen College, Oxford. The answer which I feel compelled to give, after examining, I believe, every case that was cited in the argument bearing upon it, is, that this is not a case of trust in the sense above explained; but that the master, upon the true construction of the statutes, ought to be considered only as an officer of the cathedral church, appointed for the purpose of performing one of the duties imposed upon the cathedral church by the statutes of the founder. I cannot, for the purpose of the question I have to determine, distinguish the position of the master in this case from the position of the master in The Attorney General v. Magdalen College, Oxford, or from the other cases in the books in which similar questions have arisen between collegiate bodies and persons holding offices appointed by the founder, but which persons have not been members of the collegiate body. I cannot, upon the construction of the statutes in this case, say that the master is not one of the ministri spoken of in the statutes. But even if the contrary of this could be maintained, I cannot discover a ground for holding that the master is a cestui que trust of the cathedral church only because he receives a stipend payable out of the common funds of the defendants, which would not equally oblige me to hold that every officer mentioned in the statutes to whom a livery or a stipend was given is also a cestui que trust. The case of The Attorney General v. Magdalen College, Oxford, is a direct authority in point, and I am satisfied with following that authority. Excluding then the case of trust, and assuming also, what certainly I am not disposed to question (though I give no opinion upon the point), that the removal of Mr. Whiston from the mastership without hearing him in his defence was a wrong, the question is, in whom is the jurisdiction to redress that wrong? If there be a visitor whose powers are not so circumscribed as to exclude the jurisdiction, I apprehend it is clear that the jurisdiction must be in that visitor, and that his decision upon the point is final. This is so broadly stated in all the cases since Philips v. Bury, that it cannot be necessary I should refer to authorities in support of it. The case of The King v. the Bishop of Chester shews that the rule applies as well to cathedral as to other bodies. The jurisdiction of the Court of Queen's Bench may be called in by mandamus to compel the visitor to act; and the jurisdiction of that Court, and in some cases, of the Court of Chancery also, may be called in by prohibition to restrain him from exceeding his jurisdiction; and where there is no visitor, or the power of a visitor is extinct or suspended, as in the Manchester College case, or is not pleaded in proceeding for a mandamus, as in Dr. Bentley's case, the Court of Queen's Bench may be the proper Court to redress the wrong. Attending to these distinctions will reconcile with the law, as I have stated it, much that was pressed upon me in argument by the plaintiff's counsel. In this case I am called upon to decide that the Court of Chancery has jurisdiction by bill, as a matter of course, to try the matter in dispute between the plaintiff and the defendants. In making the inquiry whether this proposition is well founded, I need not determine whether the Bishop of Rochester is, in this case, the visitor, or whether, if he be the visitor, he has such an interesf in the matter in dispute as to occasion pro hác vice a suspension of his visitorial powers; or whether the right of visitation is in the Crown, to be exercised by the Lord Chancellor upon petition; or whether the plaintiff could, by an application for a prohibition, have protected himself against the continuance of the wrong of which he complains, as in the case of The Dean of York; or lastly, whether the Court of Queen's Bench could, by mandamus, order the plaintiff to be restored to his office. The only question I have to determine is, whether the Court of Chancery in the exercise of its ordinary jurisdiction by bill, in a case in which no trusts exist, can try the plaintiff's right to the office of schoolmaster, from which the defendants have exercised their power of excluding him. I am of opinion that this question must be answered in the negative. I could, on many accounts, have wished for the opportunity of explaining more in detail the grounds on which the above opinion has been formed; but having come to the conclusion I have stated, I have thought it best to give the parties the earliest possible opportunity of having my judgment reviewed, if it should be thought erroneous. One other point remains to be mentioned. It was said for the plaintiff, that the Court, at all events, would preserve things in statu quo until the right should be determined by the proper tribunal. That this was not the object of the bill as originally framed is manifest. The object of the bill at the time the argument commenced was to obtain the judgment and decree of this Court upon the main question, namely, the plaintiff's right to the office of schoolmaster, notwithstanding the act complained of. The bill, as amended by consent during the argument, has made it a bill for the execution of a trust, and not a bill for the protection of property pendente lite, which is a bill of a special character; but, waiving all objections upon the ground of form, I cannot recognize the general proposition that in every case of a dispute arising about a right of office or other legal right, the Court of Chancery can be called upon, as a matter of course, to prevent the claimant from being displaced. until the right shall have been tried. special case for the interference of the Court has been made before me. There are numerous cases even of irreparable No In contemplation of a marriage between John Hooper Holder and Anne Ekins a settlement, dated the 11th of March 1812, was executed, which, after reciting that several large sums of stock had been transferred to Frederick Ekins and John Jeans Durbin, it was declared that they should stand possessed of the same, upon various trusts, for the benefit of J. H. Holder and Anne Ekins, and the children of the said intended marriage, and it was provided, that in case the said F. Ekins and J. J. Durbin, or either of them, should die, or be desirous to be discharged from or refuse to act in the execution of the trusts thereby in them reposed, or any of them as aforesaid, before the same trusts should be fully executed and performed, or otherwise determined, then, and in such case, and when and so often as the same should happen, it should be lawful for the survivor or other of them, the said F. Ekins and J. J. Durbin, with the consent and approbation of the said J. H. Holder and his wife, or the survivor of them, in writing, and after the decease of the survivor of them, the said J. H. Holder and Anne his wife, of the proper authority of the survivor or other of them, the said F. Ekins and J. J. Durbin, to substitute, nominate, and appoint any other person or persons to be a trustee or trustees, for the purposes of the settlement, or any of them, in the stead or place of them or him so dying, &c., with the like powers, from time to time, and as often as there should be occasion, to nominate, substitute, and appoint any person or persons to be a trustee or trustees in the manner or for the purposes aforesaid, or any of them, in the place or stead of the said then present or other succeeding trustee or trustees, who should so die, &c., so as during the joint lives of the said J. H. Holder and Anne his wife, and the life of the survivor of them, the same should be with such consent and approbation as aforesaid. The settlement then contained the usual provisions for vesting the trust estate in such new trustees when appointed, and for the execution of a declaration or declarations of trust thereof by them. The marriage was duly solemnized, and J. J. Durbin survived his co-trustee, and died in April 1848, without having ever appointed any new trustee, having by his will appointed Frederick Jeans Durbin and H. W. Birch his executors; they proved his will, but declined to act in the trusts of the settlement. As the power contained in the settlement did not authorize either J. H. Holder and Anne his wife, or the executors of J. J. Durbin, to appoint new trustees, this bill was filed by Mr. and Mrs. Holder, and other parties interested in the settled property, against F. J. Durbin and H. W. Birch, and it prayed for a reference to the Master to appoint some persons to be trustees of the settlement of the 11th of March 1812, in the place of F. Ekins and J. J. Durbin, and for a transfer of the trust funds to them by F. J. Durbin and H. W. Birch, and that such new trustees might execute a declaration of trust, containing a power for the persons to be appointed new trustees, and the survivor and survivors of them, or the executors or administrators of such survivor to appoint new trustees in the manner and under the circumstances mentioned and directed by the settlement of the 11th of March 1812. The cause came on upon bill and answer. Mr. Cooper and Mr. Hingeston, for the plaintiffs.The original and substituted trustees had power to continue themselves; but if both died there was no authority, either for the parties interested for life, or for the personal representative of the surviv ing trustee, to appoint new trustees: it was therefore desired to have such an authority introduced into the declaration of trust to be executed by the new trustees authorizing the executors or administrators of the surviving trustee to fill up any vacancy caused by the death of the two trustees. Joyce v. Joyce, 2 Moll. 276. Southwell v. Ward, Tamlyn, 314. Seton on Decrees, 250. Settlement-Party indebted - General Covenant - Subsequent Property - Regis tration of Deeds. J. B. I. and E. B. were not possessed of any property, but upon their marriage, articles of settlement were entered into, by which it was agreed that all the property which E. B. was then or might thereafter become entitled to should be settled for such purposes as E. B. should appoint, and in default of appointment for her separate use for life, with remainder to her husband for life, with remainder to the children of the marriage; and it was agreed that the settlement should contain a covenant by the husband, that all the property which he or his wife should thereafter become entitled to, should be settled upon similar trusts. At that time the husband was greatly indebted, and a short time afterwards he took the benefit of the Insolvent Debtors Act. His brother after wards died, and as his heir-at-law and one of the next-of-kin, the husband became entitled to real and personal estate of considerable value. The official assignee then gave notice to all parties of the insolvency; and it was, upon a bill filed by the wife against the assignee, to establish the articles of settlement, held, that the property, to which the husband became entitled from his brother, was subject to the provisions in the articles, and, though in the hands of the assignee, it was not liable to pay the creditors of the husband. Held, also, that as the assignee was a necessary party to a suit instituted for the convenience of the trustees to establish the settlement, he was, as he had caused no unnecessary expense, entitled to his costs. In contemplation of a marriage, articles of agreement, dated the 29th of June 1843, were made between James Brooke Irwin of the one part, and Elizabeth Beavan of the other part, and after reciting that a marriage would be shortly solemnized between J. B. Irwin and E. Beavan, it was, in consideration thereof, declared, "that so soon as conveniently might be an indenture of settlement should be executed by the said J. B. Irwin and E. Beavan, and all other proper and necessary parties, whereby all and singular the real and personal estate, property, and effects then belonging to the said E. Beavan, or to which she might thereafter become interested or entitled by any means whatsoever should be granted, bargained, sold, released, conveyed, assigned, and transferred, according to the nature of the same estate and property, to John Lund Brookes and Samuel Bamford Hamer, to the use of and in trust for such person or persons as the said E. Beavan, notwithstanding her intended coverture, by any deed or instrument in writing, or by her last will and testament, should direct or appoint, give or devise; and in default of such appointment, gift or devise, to the use of and in trust for the said E. Beavan during her life, independent of her intended husband, and free from his debts, controul, or engagements, and her receipts alone were declared to be sufficient discharges for the same; and after the decease of the said E. Beavan, to the use of and in trust for the said J. B. Irwin during his life; and after the |