necessary implication (k). If a legal or equitable interest be given to a body corporate, and no special purpose be declared, the donor has plainly implied that the estate shall be under the general statutes and rules of the society, and be regulated in the same manner as the rest of their property (1); but if a particular and special trust be annexed to the gift, that excludes the visitatorial power of the original founder, and the Court, viewing the corporation in the light of an ordinary trustee, will determine all the same questions relating to such property, as would have fallen under its jurisdiction had the administration of the fund been intrusted to the hands of individuals.

Thus in Green v. Rutherforth (m) an advowson was devised to St. John's College, Cambridge, upon trust, when the church should become void, to present " the senior divine then fellow of the college." A dispute arose as to the true interpretation of the words; and had the direction been contained in the statutes of the College, the construction would have fallen under the visitatorial province; but as the property was a new donation, it was held the question was determinable in the forum of the Court of Chancery. "A private person," it was said, "would have been compellable to execute the will, and, considered as a trust, it made no difference who were the trustees. Though here they were a collegiate body whose founder had given a visitor to superintend his own bounty, yet, as regarded one claiming under a separate benefactor, the Court would look on them as trustees, and would compel them to

(k) Green v. Rutherforth, 1 Ves. 472, per Lord Hardwicke.

(1) Id. 473, per eundem.
(m) 1 Ves. 462.

execute the intent under the direction of the Court (n). The visitor, whose judgment must be founded on the statutes, could not execute the trusts of the will, for that would be departing from the statutes; and the adhering to the statutes would be adding further circumstances to the trust than the testator prescribed, and making it the founder's will, and not the testator's (o)."

But even the visitatorial power may, under particular circumstances and in a special manner, be exercised by the Lord Chancellor; for if the heir of the founder cannot be discovered (p), or become lunatic (q), the visitatorial power, rather than the corporation should not be visited at all, will result to the Crown. In civil corporations the King is visitor through the Court of King's Bench; for corporate bodies which respect the public police of the country and the administration of justice, are necessarily better regulated under the superintendance of a court of law: but as regards eleemosynary corporations the King's visitatorial power has been committed to the Lord Chancellor, as, in matters of charity, the more appropriate supervisor (r). And the mode of application to the Lord Chancellor in these cases is not by way of information, but by petition to the Great Seal (s).

With these prefatory remarks we proceed to the consideration of the duties of trustees of charities.

(n) 1 Ves. 468, 473. (0) Id. 469.

(p) Ex parte Wrangham, 2 Ves. jun. 609; Attorney-General v. Earl of Clarendon, 17 Ves. 498, per Sir W. Grant; Attorney-General v. Black, 11 Ves. 191; Case of Queen's College, Cambridge, Jac. 1.

(q) Attorney-General v. Dixie, 13 Ves. 519, see 533.

(r) King v. St. Catherine's Hall, 4 T. R. 233, see 244; and see ex parte Wrangham, 2 Ves. jun.

619.

(s) See the cases cited in notes (p) and (q).

It is of course imposed upon the trustee, whether an individual or a corporation, not to convert the charity fund to other uses than according to the intent of the founder or donor; as if the gift be to find a preacher in Dale, and the trustees provide one in Sale; or if it be to find a preacher, and the trustees apply it to the poor or to some other purpose (t); or if the trust be to repair a chapel, and the rents be mixed up with the poor-rate for parochial purposes (u).

A chapel was granted to the trustees of a school for the use and benefit of the said school, and though the inhabitants of the hamlet had been long accustomed to attend divine service in the chapel, it was held that, as the chapel was for the exclusive benefit of the school, the trustees had no power to apply the revenues of the charity towards enlarging the chapel for the better accommodation of the inhabitants (x).

The trustees for maintaining a chapel had pulled down the edifice, converted the burial-ground to profane purposes, carried the bell to the market-place, put the pews in the parish church, and employed the stones of the chapel for repairing a bridge. Sir T. Plumer said, "it was an enormous breach of trust, and such as could not have been expected in a Christian country;" and directed an inquiry what emoluments had come to the hands of the trustees on account of the breach of trust, and what would be the expense of restoring the chapel to the state in which it stood at the time of its destruction (y).

(t) Duke, 116; and see Wivelescom case, Id. 94.

(u) Attorney-General v. Vivian, 1 Russ. 226, see 237.

(x) Attorney-General v. Earl

of Mansfield, 2 Russ. 501.

(y) Ex parte Greenhouse, 1 Mad. 92; reversed on technical ground, 1 Bl. N. R. 17.

A fund in aid and relief of "poor citizens who often were grievously burthened by the imposts and taxes of the city," was held not to be applicable to the payment of rates and other expenses of the city that would otherwise have been raised by public levies and impositions, nor was distributable to such of the poor as received parish relief; for that would be so much in aid of the ratepayers, but ought to have been administered for the exclusive benefit of the poor, and should therefore have been confined to such of the poor as were not supported by the parish (2).

"the wor

If land or money be given for maintaining ship of God," and nothing more be said, the Court will execute the trust in favour of the established religion. But if it be clearly expressed upon the deed or will that the purpose of the settlor is to promote the maintenance of dissenting doctrines, the Court, provided such doctrines be not contrary to law, will execute the intention (a).

Where an institution exists for the purpose of religious worship, and it cannot be discovered from the instrument declaring the trust what form or species of religious worship was in the intention of the settlors, the Court will then inquire what has been the usage of the congregation; and if such usage do not contravene public policy, will be guided by it in the administration of the trust. But if the purpose of the settlors appear clearly upon the instrument, the Court, in that case, though the usage

(z) Attorney-General v. Corporation of Exeter, 2 Russ. 45; S. C. 3 Russ. 395. Lord Eldon's reasoning in favour of the poor gene

rally (2 Russ. 51-54,) is extremely strong: id. qu.

(a) Attorney-General v. Pearson, 3 Mer. 409, per Lord Eldon.

of the congregation may have run in a different channel, cannot change the nature of the original institution: it is not competent for the majority of the congregation, or for the managers of the of the property to say, "We have altered our opinions: the chapel in future shall be for the benefit of persons of the same persuasion as ourselves (b).”

If the deed of endowment neither provide for the succession of trustees nor the election of the minister, an inquiry will be directed by the master, who, according to the nature of the establishment, are entitled to propose trustees, and to elect the minister (c), and if the election of the minister properly belong to the congregation, the majority is for that purpose the congregation (d). The appointment of the minister cannot appertain to the heir of the surviving trustee, who may not be of the same persuasion, but, it might happen, a Roman Catholic or Jew (e).

If a minister be in possession of the meeting-house, and preaching the doctrines that were intended by the founders, it is the practice of the Court to continue him until the case can be heard, whether he was duly elected or not (for the first point is to have the service performed), and the Court will pay him his salary (ƒ).

It is the policy of the Established Church by giving the minister an estate for life in his office to render him in some degree independent of the congregation, but if it be the general usage amongst any particular class of

(b) S. C. Id. 400, per eundem; Foley v. Wontner, 2 Jac. & Walk. 247, per eundem; Craigdallie v. Aikman, 1 Dow's P. C. 1.

(c) Davis v. Jenkins, 3 V. & B. 151, see 159; and see Leslie v. Birnie, 2 Russ. 114.

(d) Davis v. Jenkins, 3 V. & B. 155; and see Leslie v. Birnie, ubi supra.

(e) Davis v. Jenkins, 3 V. & B.

154.

(f) Foley v. Wontner, 2 Jac. & Walk. 247, per Lord Eldon.