since the filing of the information and of the application thereof: and it was ordered that the Master should state what was the annual expenditure of the charity, and what was the surplus of the annual income thereof above such expenditure and it was ordered that it should be referred to the Master to inquire and state to the Court whether it was fit and proper that any and what increase should be made to the allowances at present granted to the pensioners, and whether any and what additions should be made to the number of pensioners maintained at the college; and if the Master should be of opinion that it would be fit and proper that any addition should be made to the number of pensioners maintained at the college, then it was ordered that he should inquire and state to the Court whether it would be fit and proper that any alterations should be made in the buildings of the college, or any additions thereto: and it was ordered that the Master should inquire and state to the Court whether the treasurer and chaplain of the college, or either of them, held or occupied any and what apartments or buildings belonging to the said college, over and above the lodgings assigned to them respectively in and by the statutes of the charity and it was ordered that the said Master should also inquire and state to the Court whether the treasurer and chaplain respectively, or either of them, held or enjoyed any and what part or parts of the garden or lands of or belonging to the college for their or his own private use and it was ordered that the Master should inquire and state to the Court whether it would be fit and proper that any and what increase should be made to the allowance granted to the treasurer of the college: and it was ordered that the Master should inquire and state to the Court, whether it would be necessary or expedient that any application should be made to parliament for the purpose of carrying into effect all or any of the matters which he might report as fit and proper to be done.

The Master, by his Report, dated the 9th May, 1836,

after stating the income of the charity, and the outgoings, expressed his opinion that an increase of 2017. a year should be made to the allowances of the pensioners; and he set forth affidavits from which it appeared that there were no statutes, or any order or direction, laid down by the founder of the college, or by the trustees and visitors, in regard to the number of apartments or buildings to be held by the treasurer and chaplain, and that they respectively held such apartments or rooms as were assigned to them by the trustees and visitors; and that various sets of rooms, which appeared from the original design in the construction of the building to have been intended for pensioners, had been appropriated to the use of the chaplain and treasurer, but that the former had given up his sets. It also appeared from such affidavits that the treasurer and chaplain held certain garden ground and fields belonging to the charity for their own use: and the Master was of opinion that an increase not exceeding 30%. should be made to the treasurer's allowance, and that an addition should be made of five to the number of 39 pensioners then maintained at the college, and that additional buildings should be erected for the accommodation of such five pensioners; and that application should be made to parliament to carry into effect what related to the increase to the allowance of the pensioners and the salary of the treasurer, or to repeal so much of the above act of parliament as relates to such matters.

The relators took exceptions to this Report, as regarded the amount of the increase to the allowance of the pensioners, the addition to the number of the pensioners, and the consequently additional buildings; and it was argued, on the relators' behalf, that considering it was the intention of Sir John Morden to benefit individuals who had formerly enjoyed, not merely the comforts but the luxuries of life, that the augmentation of income ought rather to be applied in the increase of the pensions of the poor merchants than in adding to their

College built for the reception of poor merchants

who have lost their estates by perils of the sea

or other acci

dents. Looking at the class of persons who are the objects of this charity, its increased income should be devoted to

fortable support,

rather than to the augmentation of their number.

numbers; unless indeed it could be shown that the present pensions were fully adequate to their comfortable subsistence. This view, upon consideration of the will, was adopted by the Master of the Rolls.

By the order made on further directions, pronounced by the Master of the Rolls, it was declared that the pensioners of the charity were entitled to have the salaries allowed to them increased from 40l. per annum to 721. per annum each, and that no addition ought to be made at present to their number of 39, and that the chaplain and treasurer of the said charity were entitled to continue in the occupation of the apartments they then held without prejudice to any application upon any vacancy accrutheir more com- ing in those offices respectively, but that such chaplain and treasurer of the said charity were not either of them entitled to the exclusive occupation and enjoyment of the gardens and fields in the Master's Report mentioned; and it was decreed that the salary of the treasurer should be increased to 100%. per annum; and it was ordered that the trustees of the charity should be at liberty to apply for an act of parliament to repeal so much of the act of parliament made and passed in the 11th George 3, as authorised the trustees of the college for the time being to increase the salaries payable to the treasurer and chaplain of the said college respectively, to such sum or sums of money as they should think proper and reasonable, not exceeding 507. yearly, and also to increase the pensions to each poor merchant admitted into the college to such sum as they should think proper and reasonable, not exceeding the sum of 40l. to each poor merchant, any restriction contained in the said will or codicil of the said Sir John Morden to the contrary thereof in anywise notwithstanding; and the said trustees were ordered to proceed to obtain an act of parliament for the purpose of increasing the said salaries, and obtaining the said repeal aforesaid, and to enable the Court of Chancery to sanction and confirm, or to alter or vary such scheme or

schemes as should be approved of by the Master as thereinafter directed, or to alter or vary the same from time to time as circumstances might require. And it was referred back to the Master to review his Report as to the scheme therein set forth, having regard to the declaration in the now stating order made; and also to inquire and state to the Court what repairs were proper and necessary to be done to the college or to the buildings belonging thereto; and what occupation or employment of the gardens and fields would be most for the benefit of the charity and the said Master, in making such inquiries, was to be at liberty to state his opinion thereon, and also any special circumstances relating thereto.

From all the material parts of this order the defendants appealed. The ground of the appeal was thus stated:"That your petitioners are advised, and submit that the directions contained in the will of the said Sir J. Morden, and the rules and regulations left by him, are of a nature which leave the government and management of the said college with the trustees and visitors, and so as to exclude this Honorable Court, to a very great extent, from having to interfere therein; and they are advised, and submit that the said decree, and the directions contained therein, as to the act of parliament to be obtained, materially alters and varies the terms of the will of the said Sir J. Morden, and the rules and regulations laid down by him, for the government and conduct of the said college by the trustees and visitors."

Mr. Tinney, Mr. Knight, and Mr. Richards, for the appellants, read and commented upon all the passages in the will of Sir J. Morden set out above. The defendants had indeed the legal estate, but in other respects their duties were merely visitorial. The treasurer was to receive and pay. An annual supervision was contemplated to be sufficient. By the will they were almost always termed visitors (a). The minute directions contained therein (to

(a) In Green v. Rutherford, 1 Vesey, sen., 462, 472, Lord

say nothing of the statutes or orders) manifested an intention to avoid all intervention of the Court, and to leave every thing to the defendants. Besides, there was a clause expressly giving to them the sole management and government. The only pretence for coming to this Court is upon the question, whether the number of pensioners shall be increased, or an addition made to the allowances of those whom the present building will accommodate. Many clauses of the will give this discretion to the defendants. They may increase or diminish the number of pensioners, and are most capable of deciding whether the present inmates of the hospital have all reasonable comforts. Attorney-General v. Butler, Skinner, 644; AttorneyGeneral v. Lock, 3 Atkyns, 164 (a case upon this very charity); Attorney-General v. Harrow School, 2 Vesey, sen. 551. The present appeal does not propose to shut out the jurisdiction altogether, which, looking at the terms of the will, it might very well have done. The decree of the 6th June, 1834, ought never to have been pronounced. We desire to be allowed to amend our petition, and to appeal against that decree also.

Mr. Temple and Mr. Cooper, for the respondents, stated, that since the hearing at the Rolls an error had been discovered in the computation of the net revenue of the charity, and that they did not therefore urge that the pension of the poor merchants ought to be fixed at a higher sum than that mentioned in the Master's Report. They further stated, that if the treasurer gave up possession of the apartments held by him, which were evidently

Hardwicke, after saying that if either the crown or the subject creates an eleemosynary foundation, and vests the charity in the persons who are to receive the benefit of it, the law allows the founder, or his heirs, or the person specially appointed by him, to be visitor, to determine concerning his own creation, adds, "if the charity is not vested in the persons who are to partake, but in trustees for their benefit, no visitor can arise by implication, but the trustees have that power."