The Queen against John Kendall, Clerk
| Jurisdiction | England & Wales |
| Judgment Date | 05 February 1841 |
| Date | 05 February 1841 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 1172
IN THE COURT OF QUEEN'S BENCH.
S. C. 4 P.& D. 603; 10L. J. Q. B. 137.
the queen against john kendall, Clerk. Friday, February 5th, 1841. here a hospital for the relief of poor, needy, and impotent people is duly incorporated, and consists of a master and twelve poor brethren, and the advowson of a living is conveyed to them to hold to the use of the master and brethren and their successors for ever, the light to nominate to the living belongs to the majority of the entire body of master and brethren ; and the master's concurrence in the act of the majority is not necessary. Where the majority have nominated the party at a corporate meeting, and the master refuses to put the common seal to a presentation, this Court will compel him to do so by mandamus : and, if the master in his return to the writ merely insists on his right to withhold his consent and to refuse to seal it, he cannot object that there was no corporate resolution under seal; or that the writ insufficiently states his custody of the seal; or that no presentation has been actually tendered to him for signature ; or that the majority, having only voted orally for the prosecutor of the writ, may retract their resolution : and it is no answer to the writ that there are visitors appointed by the founder, to whom disputes between the master and brethren are to be referred. Semble, where the writ suggests a due election of the prosecutor by the persons entitled to elect, a return, stating facts and documents from which it appears that there was no right in the electors, is sufficient, without denying the right in direct terms. Where, on application for a mandamus calling on a party to execute an instrument, it may be presumed (as in the above case) that the instrument is simple, it is not necessary to tendejr an instrument for execution. But, if, either from the nature of the instrument, or from the statement of the parties, it appears that there is any thing peculiar in the nature of the instrument, the party called on baa a right to require that the instrument should be a proper one, and that he should have the means of knowing that it is so. [S. C. 4 P. & D. 603; 10 L. J. Q. B. 137.] Mandamus (a) to John Kendall, clerk, master of the hospital of Eobert Earl of Leicester, in Warwick, reciting a vacancy in the vicarage of Hampton in Arden with Nuthurst, iti the county of Warwick ; that the right to nominate a fit person to be presented to it belonged to the master and brethren of the hospital; that, at a corporate meeting of the said master and brethren duly convened, J. A. Morris, clerk, had been by the major part of the said master and brethren duly nominated and elected to be (a) As to-the points made on obtaining the rule for the mandamus, see note at the end of the case. P. 385, note (c). I Q. B. M7. THE QUEEN V. KENDALL 1173 presented to the said vacant vicarage, and, in pursuance of such nomination and election ought to have a presentation sealed with the common seal of the said master and brethren ; that defendant, by virtue of his office, had the custody of one of the keys of the chest wherein the common seal was [367] kept, but had refused to affix, or permit to be affixed, the seal to such presentation, though duly required on behalf of the said J. A. Morris. The writ then commanded defendant to cause the corporate seal to be to affixed to such presentation. The return to the writ certified that the hospital was founded by the Earl of Leicester under the authority of stat. 13 Eliz. c. 17 (a)1, which enabled him to found an hospital for the sustentation and relief of poor, needy, and impotent people, to be incorporated and have succession of such head, members, and numbers of poor, needy and impotent people as should be named by the earl; and provided that the hospital so incorporated should have ability to purchase and hold manors, lands, tenements, and hereditaments not exceeding the yearly value of 2001.; should have a common seal, whereby the head of the incorporation with the members thereof might seal any instrument in anywise touching or concerning the said incorporation and their lands, tenements, &c,, and should be ruled, governed, and visited by persons appointed by the earl according to rules, statutes, and ordinances made and established by him, his heirs or assigns. The return then set forth the deed of incorporation, 28 Eliz., under the seal of the earl, in pursuance of the Act, by which the hospital, named in the writ, was established for the relief of poor, needy, and impotent persons, especially such as should be wounded in the war in the service of the Queen or her successors. It was made to consist of one master and twelve poor brethren ; and, in order the better to effect the intent of the earl, and that the goods, lands, &c., thereafter [368] granted for the support of the hospital, might be better ordered, the earl thereby named the first master and brethren, and provided that his and their successors should be appointed by the earl or his heirs, or, upon their default to appoint in three months, then by the Bishop of Worcester and the Recorders of Coventry and Warwick for the time being, or any two of them. The deed then provided that the master and brethren and their successors should be a body corporate by the name of the " Master and Brethren of the Hospital of Robert Earl of Leicester, in Warwick," and by that name should have perpetual succession, and ability to purchase, have, and receive, to them and tbeir successors, lands and tenements, &c., of the value specified in the Act; and that the master and brethren, and the said lands, &c., should be ruled and governed according to certain rules, statutes, and ordinances annexed to the said deed, or to be thereafter established by the earl. The return then stated certain of the rules and statutes annexed to the deed by the earl, and that they were still in force, savo in so far as they were altered by an Act 53 G. 3, c. ccxiii. (local and personal, public) (a)2. (a)1 The foundation of the hospital is set forth in Hex v. Bishop of Worcester, 4 M. & S. 415. (a)2 The following rules were, among others, set forth in the return : " 1. Master and his qualities. Imprimis. We will and ordain that none shall be elected or preferred to be master of the said hospital but such one as shall be an ordinary preacher of God's word, and of good life and conversation ; and, if any person, being no ordinary preacher, or of evil life and conversation, shall be preferred to be master of the said hospital, then it shall be lawful for the visitors of the said hospital, or two of them, to deprive the said master. "2. The vicar of St. Mary's in Warwick to be preferred to the mastership, if the earl, or other person having the nomination to it, shall not think some other fitter. " 3. That the master shall take the oath of supremacy. " 4. Oath of the master for the government of the house. Item, the same elected master, before he takes upon him the said mastership or shall be master of the said hospital, in the presence aforesaid, shall take a corporal oath upon the Holy Evangelists in effect following, namely : ' I J. S. shall govern and order this hospital and the poor thereof, in the fear of God, according to the laws, statutes, and ordinances of the founder thereof; I shall not willingly defraud the poor or any of them of any right or duty to them assigned or belonging; I shall not consent or agree to any act or thing whatsoever whereby the poor of this house may be defrauded, or the good iuteut of the founder thereof made frustrate ; I shall, as near as I can, keep all the statutes, ordinances, and rules instituted by the founder of the said hospital, not 1174 THE QUEEN V. KENDALL r.Q. B. 368. [369] That the Bishop, dean, and archdeacon of Worcester, for the time being, had, from time to time since the making of the rules, acted as visitors of the hospital [370] under the powers conferred by the deed, and still were visitors : that the earl subsequently granted to the master and brethren the advowson mentioned in the contrary to the law of God or the laws of this realm; I shall not take, directly or indirectly, any reward, or promise of reward, for the placing of any poor brother or brethren in this house. So help me God.' " 5. The vicar of St. Mary to be master, sede vacante. " 6. Oath of the brethren. Item, such person to be elected a brother of the said hospital, before he be admitted a brother of the same, shall take a corporal oath upon the Holy Evangelists before the master, and most part of the brethren, and for the want of a master in the presence of the...
To continue reading
Request your trial
-
Dublin Corporation v O'Callaghan
...LAW 3ED P687 KYD TREATISE ON THE LAW OF CORPORATIONS 1792 V1 13 GRANT PRACTICAL TREATISE ON THE LAW OF CORPORATIONS (1850) 154 R V KENDAL 1841 1 QB 366 MAYOR CONSTABLES & CO OF MERCHANTS OF THE STAPLE OF ENGLAND V GOV & CO OF THE BANK OF ENGLAND 1887 21 QBD 160 HASCARD V SOMANY FRCEM 504 RE......