Attorney General v Ewelme Hospital
| Jurisdiction | England & Wales |
| Judgment Date | 01 August 1853 |
| Date | 01 August 1853 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 1075
ROLLS COURT
S. C. 22. L. J. Ch. 846; 1 W. R. 523.
[366] the attorney-general v. ewelme hospital. April 26, 27, August 1, 1853. [S. C. 22 L. J. Ch. 846 ; 1 W. E, 523.] In 1437 an almshouse or hospital was founded and endowed by the lord of the manor of Ewelme, for thirteen poor men, two priests, for praying for souls and the education of youth, and the right of nominating the master was vested in the lord of the manor for the time being. Previous to 1513 the manor and the rights of patronage became, on the attainder of the lord, forfeited to the Crown. In 1618 King James the First, by letters patent, granted the right of nomination of the master to the University of Oxford, for the support of the Regius Professor of Medicine, and in 1818 the manor, with all its advantages and endowments, was duly granted by the Crown to J. B. The following points were held : - First, that the rights of nomination and visitation, incidental to the manor, did not, \ipon the forfeiture by attainder, become merged and extinguished, but vested in the Crown. Secondly, that the property, &c., of the hospital were not affected by the statutes for the dissolution of monasteries (27 Hen. 8, c. 28, and 31 Hen. 8, c. 13), but remained vested in the Crown as before. Thirdly, that they were not, in any degree, affected by the Act respecting chantries (1 Edw. 6, c. 14), so as to vest the property in the Crown, as its quasi " private possessions." Fourthly, that the founder, by annexing the right of nomination to the manor, could not and had not made them inseparable ; but that the right of patronage was in the nature of a lay advowson, which the lord might alien without parting with the manor, and the converse. 1076 ATTORNEY-GENERAL V. EWELME HOSPITAL 17 BEAV. 367. Fifthly, that by the grant of King James to the University of Oxford, the jus patronatus had, de facto, been severed from the manor of E. Sixthly, that by the'common law, the grant of a manor by the King cum pertinenlibtis would pass an advowson appendant to it, and that the statute 17 Edw. 2, c. 15, created a restriction as to advowsons of churches only and did not apply to the present case of a lay advowson. Grants by the Crown are construed favourably to the grantor, and in such a case the usual rule as to the construction of grants is inverted. If it be shewn that the King is deceived in his grant, it will not include a subject-matter not expressed. Unascertained and undefined advantages will pass under the general words by a grant of a manor, although not in the contemplation of either party at the time. Thus, for instance, the minerals in the lord's waste would pass, although their existence was neither known nor suspected by any of the parties to the contract. So also, the advowson to a living will pass with a manor by general words, though not specifically named in the grant. After a long possession, the Court will make great presumptions, including, in some cases, even an Act of Parliament, in order to protect a right. The Court will not, however, adopt such presumption, when the origin of the right of possession is clearly ascertained and negatives such presumption. The almshouse and hospital of Ewelme were founded in the year 1437 by William de la Pole, Duke of Suffolk, by virtue of a licence granted to him and Alice [367] his wife, by King Henry the Sixth. It was built on ground belonging to them and appurtenant to their manor of Ewelme; and on the 4th of February 1442 were endowed by them with certain manors in Bucks, Wilts and Hants. It consisted of two priests or chaplains, and thirteen poor men, arid various statutes and ordinances were made by the Duke and Duchess of Suffolk, for its regulation and government. The two priests and the thirteen poor men were, by these statutes, to constitute a body corporate, whose duty it was to pray for the living and the dead ; and of the two priests, one was to be preferred in power and reverence, and was to be called the master of the almshouse, and to have charge of the domestic economy and government of the institution, and the other was to teach grammar to the children of the manor of Ewelme (who were to be taught gratis), and say mass in the master's absence. The Chancellor of England and the treasurer were appointed protectors of the charity, against encroachments of the lords of Ewelme; and the duke's successor in the lordship of Ewelme, at the time of his visitation, was empowered to remove the master and teacher of grammar, for reasonable cause, to be inquired into. The lords of the manor of Ewelme were also to be provisors of the almshouse, and to have power, from time to time, to provide for the same a master, teacher of grammar and poor men, in ease of voidance by death or otherwise; the master to be a learned man of the University of Oxford, passed thirty winters of age, with liberty toehold a prebend or free chapel or benefice, so as not to interfere with his duties or residence in the hospital. The charity was to be visited, also, once a year, by the provisors or founders. In the reign of Henry the Eighth, the manor and the [368] lordship of Ewelme, and all the rights of patronage incidental to it, became vested in the Crown by the attainder of the then lord (whether of the founder or his grandson did not appear), and Henry the Eighth and his successors afterwards remained lords of the manor, down to the year 1818. In the year 1618 James the First, by letters patent, and to promote good literature and increase the stipend of the Regius Professor of Medicine in the University of Oxford, for the time being, granted to the chancellor, masters and scholars of the university, the donation, collation and free disposition of the office of warden or master of the almshouse or hospital of Ewelme, and directed that the professor, though a layman, and not in holy orders, should enjoy the office and its endowment, so long as he held the professorship. And by the same letters patent, he granted a prebend to the chancellor, masters and scholars, for the same purpose, and gave his assent to an application to Parliament, for an Act to authorize the professor to hold the mastership and prebend for his support. No Act of Parliament appeared to have been passed to vest the mastership and 17BEAV.M9. ATTORNEY-GENERAL V. EWELME HOSPITAL 1077 prebend in the chancellor, masters and scholars of the university, or to alter the character from spiritual to lay, but the Eegius Professor of Medicine, for the time being, had ever since 1618 held the mastership of the hospital. In 1818 the Commissioners of Woods and Forests, under the provisions of the statute 57 Geo. 3, e. 97, in consideration of .1507, granted the honour and manor of Ewelme to Jacob Bosanquet. The grant contained these parcels :-All that the manor of Ewelme, in the county of Oxon, and all advantages, emoluments, &e., and every part and parcel thereof, in as full and complete a manner as the King now holds them." [369] On the 24th of March 1821 the manor was conveyed by Mr. Bosanquet to the late Earl of Macclesfield, from whom it passed to the present earl, who, in 1824, claimed the rights of patronage attached to the office. After some discussion and delay, Sir Robert Peel, the then Home Secretary, wrote to the earl, on the 14th of August 1826, to inform him, that the law officers of the Crown were of opinion, that the rights in question were so inseparably annexed to the lordship of Ewelme, that they must, of necessity, be exercised by the lord of that manor, and that it would not, he thought, become him to advise the Crown any longer to dispute his lordship's title to the exercise of those rights, although the officers of the Crown never contemplated the sale of those rights, nor were they included in the property valued, and the Crown never received any valuable consideration for them. From that time the Earl of Macclesfield nominated the almsmen, but the office of teacher of grammar, held by the Rev. George David Faithfull, had not been vacant since 1824. The office of Regius Professor of Medicine became vacant in 1822, when Dr. Kidd was appointed, and no claim was then made on the part of the late earl. Dr. Kidd died in September 1851, and thereupon the Earl of Macclesfield appointed the Defendant, the Rev. Henry Alfred Napier, to be the principal chaplain and master of the almshouse. On the 15th of November following, the Queen appointed Dr. Ogle to be Regius Professor of Medicine, in the University of Oxford, and the University appointed him master of the hospital. A question thereupon arose, which of these two gentlemen had been rightfully appointed master. An information was filed by the Attorney-General [370] against the chaplain and poor men of the almshouse of Ewelme, the University of Oxford, the Earl of Macclesfield, the two claimants of the mastership, and the Solicitor-General, praying that proper directions might be given for regulating the charity, and for a declaration as to the discontinuance of fines, and an inquiry as to existing leases; but the main and only question discussed was as to the right of nomination to the mastership. the attorney-general [Sir Alex. Cockburn], Mr. Roupell, Mr. W. M. James, and Mr. Terrell, in support of the information. the solicitor-general [Sir Richard Bethell] and Mr. Whitbread, for the University of Oxford, said the Court had to determine the question between those parties to the suit who were the real litigants, as to the true meaning and effect of the grant to Lord Macclesfield ; for if it did not expressly include the hospital, or convey it as annexed to the manor, then the right of nomination did not pass by the grant, even though it should be held that the letters patent of James the First did not sever the right of nomination from the manor. But if the grant did carry the hospital, as annexed to the manor, there would still arise the...
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