Attorney General, at the relation, & v Magdalen College, Oxford
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1854 |
| Date | 01 January 1854 |
| Court | High Court of Chancery |
English Reports Citation: 50 E.R. 637
ROLLS COURT
S. C. 16 L. J. Ch. 391; 11 Jur. 681. See abstract of information, and of answer, 7 Hare, 564 (n.).
10BEAV.40J. ATTORNEY-GENERAL V. MAGDALEN COLLEGE, OXFORD 637 [402] the attorney-general v. magdalen college, oxford. Feb. 22, 23, 27, March I, June 19, 1847. [S. C. 16 L. J. Ch. 391 ; 11 Jur. 681. See abstract of information, and of answer, 7 Hare, 564 (ri.).] Upon an information for the reformation of alleged abuses in the management of a school established by the founder of Magdalen College, in connection with it: Held, that the Court had not jurisdiction to give the relief asked. That though there was sufficient proof of the duty or obligation, there was no evidence of a trust, as the word is understood in this Court, and that the proper remedy was through the visitor. This was an information filed by the Attorney-General, at the relation of George Parsons Hester, against the presidents and scholars of St. Mary Magdalen College, Oxford, praying, that the college might be restrained from erecting any buildings on the site of the hall and school in the information mentioned, for their own use. And that it might be declared, that the school founded at Oxford, by William Waynflete, was a public grammar school. And that the president ought to hire and appoint fit and proper persons to be the master and usher thereof. And that the president and scholars might be decreed to provide commons for the master and usher equally with the fellowa, and to allow the master and usher proper rooms in the college. And that it might be declared, that the master and usher were entitled to participate in the increased revenue of the college. And that the usher was entitled to a stipend equal to one-half of the stipend of the master. And that the president and scholars might be ordered to build and provide all necessary and convenient buildings for the grammar school on the original site thereof, or to restore the ancient grammar school and the buildings connected therewith. The College of St. Mary Magdalen, in the University of Oxford, was founded by "William Waynflete, Bishop of Winchester. By a deed-poll or instrument of foundation, dated the 12th of June 1458, after reciting the King's licence then lately given to found a perpetual [403] college of learning and of the sciences of divinity and philosophy, of one president and certain scholars, according to the ordinances and statutes to be made, to be called the College of the Blessed Mary Magdalen, in the University of Oxford, and to be incorporated; and after also reciting that the president of the hall of St Mary Magdalen in the same university, and the scholars of the same hall had granted the site or ground therein mentioned, to the intent that the intended college might be thereon erected - it was made known or declared, that the founder, William Waynflete, did erect, found and establish, a certain perpetual college of learning of the sciences of divinity and philosophy, in and of the number of one president and certain scholars, graduates learning the same sciences, according to the ordinances and statutes to be framed in that behalf; and he named a president and certain scholars, giving them power to elect and admit others, and to elect and admit successors in case of vacancy. And the founder having thereby made certain temporary regulations for the government of the college, postponed the making of all such other ordinances and statutes as should be necessary and fitting in the premises and not thereby made. The instrument did not contain any reference to a grammar school, as in any way connected with the intended college, or contemplated by the licence in virtue of which the college was founded, and the supplementary statutes and ordinances, which were contemplated by the foundation, were not made for many years. It did not appear when the establishment of a school, as connected with or in the college, was first thought of; but, in the year 1480, certain grammar scholars were taught gratis, at the charges of the founder, in a certain low hall within the college; and, in the month of August in that year, a building for a grammar school, with [404] upper chambers and a kitchen necessary for the school, was begun to be erected; and, in the year 1481, and, subsequently, entries in the Libri Computi were found, shewing payments of 10 a year to the schoolmaster, and =f a year to the usher. It was stated in the information, and also in the answer, that the statutes were 638 ATTORNEY-GENERAL V. MAGDALEN COLLEGE, OXFORD 10 BEAV. 40S. finally settled in the year 1483, which appeared to be after the erection of the school, and the employment of a schoolmaster and usher by the college. By these statutes, the founder established the regulations which were intended for the permanent government of the college ; and, thereby, after providing that the college should consist of one president, and such number of scholars as therein mentioned, and establishing many regulations respecting elections, and the duties and coDduct of the presidents, scholars, fellows, clerks, chaplains, and ministers, it was expressed as follows :-" We enact, ordain, and will, that there be in our college, for ever,, one master or informer in grammar ' catuhictituix per presitlentem pariter et remotivus,' who ia freely and gratuitously, without exacting anything, to inform, teach, and instruct, with the greatest diligence, and in the most expedient manner, all persons whomsoever, ' quoscunque aaxdentes,' who may attend the grammar school, which is founded and situate hard by our college aforesaid. Also, under the said master, there is to be one usher, engageable and removeable in form aforesaid, ' sub yrredieta, fonnti conduditius et renwtimis,' who is freely and gratuitously, and without the demand of anything, to inform and instruct 'didos advenientes,' the said persons who attend it, suborclinately to the aforesaid master, and, in all things, to take upon himself and supply the duties of the said master, [405] when the latter is absent. And our will is, that such master be paid 10, and such usher 100s., out of the common goods of our college, in addition to their chambers and weekly commons, which commons we would have to be equal to those of the fellows of the college," &c. It was alleged by the information, that by this part of the statutes, a grammar school was founded or recognised, and that the terms in which this was done, were such as to impose upon the college a trust to maintain the school, and to support the master and usher in a proper manner; and that the master and usher were entitled to participate with the president and scholars of the college, in the increased revenue of the college. The Defendants seemed doubtful whether they ought to admit, that the school was ever founded, in the proper acceptation of the term ; and they denied that it had been founded at all, except in the sense in which the founder says he has founded it in his college ; for they said, that the school had no revenue or property of its own, distinct from the college, and that the officers of the same were simply college officers or instructors. They submitted that the stipends of the master and usher were fixed by the statutes, and they denied that the master and usher had any right or claim to such increased yearly salaries as the college had, in fact, allowed them, or any claim to participate in the increased revenue of the college. They elsewhere said, that the founder had given no property of any kind in trust for the school, or in trust for the master or usher thereof ; but had merely directed the payment of yearly stipends to the master and usher; and they submitted that this Court had no jurisdiction [406] in the matters in question in the suit, and that the visitor of the college was the proper person to hear and determine such matters. By the statutes, the Bishop of Winchester, for the time being, was appointed visitor, with authority to visit the college, and convene the president, scholars, and fellows, and, with full power to enquire, whether the ordinances and statutes had been duly executed and observed, and touching all matters concerning the state, welfare, and credit of the college; and, also, with power of duly reforming attempts made against the ordinances and statutes, and of doing all things indispensable in the premises, even though he should chance to take proceedings, for the privation or removal from his administration or office of the president, vice-president, or any other officer whatsoever, or for removal from the college of any fellow or scholar of the college. The founder was said to have died in the year 1486. He had, for a time at least, supported, at his own charge, a schoolmaster and usher, who, afterwards, received their stipends from the college. On the 28th of June 1487, during the presidency of Richard Mayhew, the president, not alone, but as it was said, the president and scholars, with one consent, granted to John Anwyhill, the informer of the grammar scholars, in the school adjoining the college, the annual provision of 10 for the space of a term of fifteen years; and one tenement of the college to be assigned to him, for the same period, at the discretion of the president. 10BEAV.407. ATTORNEY-GENERAL, V. MAGDALEN COLLEGE, OXFORD 639 With reference to the practice, as regarded the jurisdictive control of the visitor over the schoolmaster and usher, it appeared, that in the year 1520, Bishop Fox, oti his visitation to the college and school, charged the [407] president with negligence, in respect of the instruction of the boys in grammar; and, after hearing the answer of the president, admonished the schoolmaster, who was detected or exposed at the visitation, to use more exact diligence about the instruction of the scholars, in sound learning for the future. Before the...
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