Court had directed all papers and writings to be produced, he could not exercise any discretion, so as to decide that all should not be produced, and that only some of them should be produced. I do not concur with the Master in either of his views. In the first place, I think that the sixtieth order applies to former, as well as to subsequent, decrees and orders; and it does not seem to me, that there is any necessity for altering the usual language of decrees and orders, which comprises all books, papers, and writings; but that the Master, notwithstanding the generality of the words of a decree or order, is to exercise the discretion given him by the sixtieth order. I think, therefore, that all proceedings on the order of the 12th of December 1828, should be suspended, and that it must go back to the Master to determine what deeds and papers ought to be produced, and how long they ought to remain in the office. 1829. Dec. 9. IN THE MATTER OF THE FREE SODBURY. Under what circumstances, as to original foundation and subsequent usage, a school shall be held to be endowed for the purpose only of teaching the learned languages. The master of a free school has an estate of freehold in his office, and is not removable at the pleasure of the patrons of the school. The Court will, upon petition, restrain an ejectment brought by the patrons to evict the master from the possession of the schoolhouse. Agreements entered into between the master and the patrons as to the mode of conducting the school, which have a tendency to alter its character, are invalid, and do not bind the master; and the patrons are guilty of a breach of duty, when they require or induce a master, or a candidate for the office of master, to enter into such agreements. By a decree, dated the 11th of January, in the third year of Charles I., made by the commissioners of charitable uses, it was ordered, that the rents and revenues of the lands belonging to the town of Chipping Sodbury, not appointed for the repair of the church, or otherwise limited to any par 13 ticular use, should go and be employed to the uses, charities, and purposes following: that is to say, 201. thereof should be paid to the poor of the borough yearly; and 201. should be laid out for the binding out apprentices of poor town-born children in manner therein mentioned; and, in the next place, that 201. more per annum should and be paid to a schoolmaster, that should go teach townsmen's children their grammar there freely. By another decree of the commissioners of charitable uses, dated the 4th of September 1694, it was declared, that the commissioners held the former decree meet to be observed and performed, and that appointed by the bailiff and burgesses of the schoolmaster should be nominated and the town for the time being, or the major part of them; and that his salary of 201. per annum should be paid to him by half yearly payments by the town masters for the time being, who were to collect the rents and revenues of the lands; and after certain ways should have been sufficiently repaired, and the 207. should be raised raised for binding out apprentices, and the for the poor, the 201. should be likewise 201. should be raised for the schoolmaster, it was ordered, that the overplus of the rents larly appropriated for the repairs of the and profits of the town lands, not particuchurch, and also the rents and revenues of certain lands purchased of John Attwood, should go and be employed to and for the payment of a certain mortgage (which had been long since satisfied), and, after such mortgage should be fully paid, that then 107. more per annum, or so much thereof as could be raised, should be raised and paid belonging to the town, not particularly apout of the rents and revenues of the lands propriated for the repair of the church or for the relief of the poor of the town. And it was by such decree further ordered, that part of a certain house in Chipping Sodbury, which had been theretofore used, or in part used, as a school-house, should remain to the townsmen of the town and their successors for ever, for a schoolhouse, in which to teach the townsmen's children; the bailiff and burgesses, or repairing the school-house out of the town townsmen of the town from time to time stock. The premises at present used for the purposes of the school, and for the residence of the master, had been built by the bailiff and bailiff burgesses out of monies arising partly from the sale of another house, part of the town lands, which had been theretofore used as a place of residence for the schoolmaster, and partly out of sums of money given by divers persons to the said bailiff and bailiff burgesses, for the purpose of providing a residence for such schoolmaster. In the building of this house, the bailiff, and bailiff burgesses had used part of the materials of the school-house mentioned in the decree of 1694, which they had previously pulled down: and the new school-house had, ever since it was so built, been used as well for the purpose of a school-house as for the residence of the master; and that the town masters, on behalf of the bailiff and bailiff burgesses, had ever since paid the rates and taxes assessed upon it. In 1818, Mr. Smith was appointed schoolmaster by the bailiff and burgesses. In their nomination, addressed to the bishop of the diocess, they stated, that they "did thereby nominate Thomas Smith to the free grammar school, founded in the town of Chipping Sodbury, to do and perform the duties of the office of schoolmaster of the same town, and to receive the fees, emoluments, and advantages appertaining and belonging thereunto, as theretofore used and accustomed and they prayed the bishop to ratify and confirm their nomination." bishop accordingly granted his licence. The The town lands had increased greatly in yearly revenue; but Mr. Smith received only 20l. a year, by half-yearly payments. In November 1826, the bailiff and burgesses proposed to Mr. Smith, that he should execute an agreement, by which they continued him as master of the school, at a salary of 401. a year, and he, on the other hand, was to teach the boys English grammar, reading, writing, and arithmetic, and to conduct the school according to such rules as the bailiff and bailiff burgesses should deem it expedient to make. Mr. Smith refused to accede to the proposed terms the bailiff and burgesses persisted in their demands; and, on the 22nd of November, they caused the following notice to be served on him :- "Sir,-You having refused to accede to the contract, which we, on or about the 8th day of November last, proposed to you, and subsequently disclaimed our right of interference with you as the grammar-master of the school; whereupon we, on or about the 24th of that month, notified to you in writing, that from and after the 21st of December then next, we should declare the mastership of such school vacant: we do hereby disavow you as the master of the said school, and require you to forthwith quit and deliver up the school-house and premises in your occupation. Dated the 22nd of December 1826. "Chipping Sodbury Borough. "To the Rev. T. Smith." In pursuance of this line of conduct, the bailiff and burgesses, in Hilary term, 1827, brought an ejectment in the King's Bench, upon demises by them, as well in their corporate capacity as in their individual capacities, under the names of William Higgs, Joseph Hiatt, Hery Williams, George Whittington, Richard Arnold, Charles Watkins, John Tily, Isaac Limbrick, and Jasper Fowler, for the purpose of evicting Mr. Smith from the possession of the new school-house. Mr. Smith, the churchwardens, and some of the inhabitants of the town, then presented a petition. Affidavits were filed, both for and against the petition, for the purpose principally of shewing what the character of the school had been, according to past usage, and what were the conditions under which Mr. Smith had been appointed master. The substance of those affidavits is detailed in the judgment of the Lord Chancellor. The petition was heard before the Vice Chancellor. By the order made on that occasion, his Honour declared, "that the school was intended to be, and ought to continue a grammar-school for the purpose of teaching the learned languages grammatically: and that the master of such school is only bound to teach the learned languages, and not the English language, reading, writing or arithmetic; and that he has an estate of freehold in his said office, and that he is entitled to the use of the school-house for his residence, and of the school-room for the purpose of teaching; and his Honour did order that the bailiff and bailiff burgesses of the said town be restrained in their corporate character, and individually, from proceeding in the action of ejectment commenced by them, and from commencing or prosecuting any action at law, for the purpose of ejecting Thomas Smith from the possession of the school-house; and his Honour did order that it be referred to the Master in rotation, to inquire whether any, and if any, what, increase in the rents and revenues of the town lands, not appointed or appropriated for the repair of the church, or otherwise limited before the decree of the third year of Charles the First, to any particular use, has taken place; and what are the estates from the rents and revenues of which the salary of the master of the said grammarschool ought to be paid, and what ought to be the amount of such salary; and that the Master should settle and approve a scheme for the government of the said school, and the conduct thereof." Then, after directing an inquiry concerning a sum of 107. a year, which had been given by one Davis towards the maintenance of the schoolmaster,— His Honour did order "that the bailiff and burgesses of the town of Chipping Sodbury, in their corporate capacity, and the respondents, William Higgs, Joseph Hiatt, Henry Williams, G. Whittington, Richard Arnold, Charles Watkins, John Tily, Isaac Limbrick, and Jasper Fowler, pay to the petitioners the costs of that application to that time." The consideration of the costs of the inquiries, and subsequent costs, were reserved. Against this order, the bailiff and bailiff burgesses appealed. The questions raised were the following: Whether the school, having regard to its original foundation and to long-established usage, was a school for teaching only the learned languages. Whether the master could be removed by the corporation at their pleasure. Whether he was bound by any agreement which he had made with the corporation, when first appointed to the office. Mr. Pepys, Mr. Treslove, and Mr. Whitmarsh were in support of the appeal. The Solicitor General and Mr. Knight appeared for the respondents. The Lord Chancellor.-The main question was, whether this school was a grammar-school; and if it was in its original foundation a grammar-school, whether there has been such a constant and uniform usage as would have the effect of altering the school, and giving to the school a different character and description. The earliest notice which we find of this school, is by a decree of the commissioners under charitable uses in the third year of the reign of Charles 1, which directs that the sum of 201. a year should be set apart for a schoolmaster, "to teach the sons of the townsmen of Chipping Sodbury their grammar freely." In the year 1694, another decree was pronounced by commissioners appointed under the same statute; and by that decree it was directed that the order in the former decree should be confirmed; and it was further directed that the townmasters should, out of the rents they received from the estates belonging to the corporation, pay the 201. a year by halfyearly payments; and it was further directed, that the nomination and appointment of the schoolmaster should be in the bailiffs and burgesses for the time being. In the decree of 1694, there is a further clause referring to a gift of 10l. a year, by a person of the name of Robert Davis; and that 107. a-year is given to the grammarschool master on the conditions mentioned in the gift. I think it is quite clear, therefore, that, at this period, we are to consider, that this was a grammar-school, according to the construction which is put upon the term "grammar-school" in this court. According to the evidence now before us, the first person who appears to have been appointed to this school,-at least the first person of whom any trace remains,— was John Watts. He was a clergyman, and was appointed to the school in the year 1695. In the Registrar's Office of the bishop of the diocess, he appears to have been licensed to this school as a public school-the public school of Chipping Sodbury; he held the office for one year only. In the year 1696, or the latter end of the year 1695, the Rev. John Shellard was appointed, and he held the office from the year 1695, down to the year 1737. There are no documents and no entries throwing any light upon the subject during the time that Mr. Shellard held the office of master. Mr. Shellard was succeeded by another clergyman, Francis Goold, who was appointed in the year 1737, and he continued to act as the schoolmaster till the year 1782, a period of forty-five years. Upon referring to the office of the Registrar of the diocess, it appears that Mr. Francis Goold was licensed to teach in the grammar-school of Chipping Sodbury. There is some evidence of living witnesses with respect to the manner in which the school was conducted during the time of Mr. Goold, though that evidence is extremely slight. Mr. Coates, a clergyman, now sixty-four years of age, was the grandson of Mr. Goold he was very young at the time when he was at that school, and he remained there only for a short period, but he was acquainted with Chipping Sodbury from that time up to the present: he resided there occasionally; he had connexions. with Chipping Sodbury, and was enabled from these circumstances to keep up his recollection of the school, and of the early period of his life, down to the time when gave his evidence. He says, that "during the short period when he was at the school, Mr. Goold acted as the grammarmaster of the school, and taught nothing but the learned languages:" and he adds, in confirmation of this, that "reading, writing, and arithmetic, were at that period taught in the school, but taught by another person of the name of Hicks, who was appointed for that purpose by the corporation, and paid by the corporation." There is evidence in opposition to this, of one witness, a person of the name of Russell, who, at the time of giving his evidence, was upwards of eighty years of age. He was at the school previous to Mr. Hicks's appointment, and he says he was taught reading and writing by Mr. Goold for a period of two years previous to the date of Mr. Hicks's appointment, and upon the appointment of Mr. Hicks, he was taught. reading and writing by that gentleman. Now it is remarkable, that his evidence was not adduced till a very late period of the investigation; and it is remarkable also, that this witness, who states that he was he taught to read and write at this school, does not sign his affidavit, but annexes his mark to it; and it further appears, that, although taught, as he says, to read at this school, he could not read the affidavit, for it was read over to him. These circumstances, therefore, throw considerable doubt upon his testimony, which, at all events, in my opinion, cannot be set in competition with that of Mr. Coates, a gentleman of education and character, brought up at the school, and closely connected with Mr. Goold. There are certain entries, however, relied upon in the books of the corporation, for the purpose of shewing, that this was not merely a grammar-school:-an entry of the appointment of Mr. Watts, an entry of the appointment of Mr. Shellard, and an entry of the appointment of Mr. Goold; and in each of those entries it is stated, that the respective parties were appointed to the grammar-school, upon condition that they should teach reading, writing, and arithmetic. None of those documents, however, were signed by the persons so appointed, they are entries in the books of the corporation, who were the patrons of the school; and that they were endeavouring to impose upon the persons appointed, duties which they had no right to impose, is obvious from this circumstance, that, in each of the entries, they require as a condition, that the schoolmaster shall make out all the parish rates, and engross all the accounts of the officers of the corporation. It appears to me, therefore, obviously, that no reliance can be placed upon any of those documents; that (carrying down the history of this school to the year 1782, when Mr. Goold ceased to be master,) so far from there being evidence of an uniform and constant usage, altering the original character of the school, it appears to me that the evidence, as far as it goes, is confirmatory of the character of the school as originally founded. In the year 1782, when Mr. Goold resigned his office of master, the Rev. Edward Davis was appointed to succeed him, and this part of the case is material, because Mr. Edward Davis is now living, and has given his testimony. Mr. Davis says, that he was appointed for the purpose of teaching the learned languages classically in this school, and for no other purpose whatever. He continued master from the year 1782 down to the year 1799; and when he was appointed, another person of the name of Ferrebee was appointed as the writingmaster to the school, for the purpose of teaching the boys reading, writing, and arithmetic; and reference is made to a document which appears to me extremely material in the consideration of this question. On the 19th of November, in the year 1782, at the time Mr. Ferrebee was appointed the writing-master of the school, the corporation entered into certain resolutions; and in those resolutions they state, that there is a surplus of the town rents, and, referring to the decree and the authority they think they possess for the application of this surplus, they direct such surplus to be applied for the purpose of supporting the schoolmaster, to teach reading, writing, and arithmetic, in the school; that the schoolmaster, who is to teach reading, writing, and arithmetic, shall be appointed only for a year; and that the whole shall be under the superintendence of the grammar-master, who shall, from time to time, report to the committee appointed for superintending the school, how the school was conducted, not merely with reference to the grammar-school, but, with reference to writing, &c. Twelve guineas were appointed for paying the writing-master; and he continued to occupy this office as writing-master down to the year 1793. Now, this appears to be a distinct recognition on the part of the corporation, that this was a grammar-school; but, there being certain surplus funds, and they being desirous to render the school more advantageous, they engrafted upon this grammarschool, reading, writing, and arithmetic, and appointed a fund for the purpose of discharging the expenses incident to that extension of the system. That, however, does not alter the original character of the foundation, or render it less a grammar-school than it was when it was originally established. In the year 1793, Mr. Ferrebee was dismissed, in consequence of the failure of the town funds; and then it appears, Mr. Davis taught reading, writing, and arithmetic to the scholars during the remainder of the time he was in the school; but he says, in VOL. VIII. CHANC. 17 his evidence, he did not conceive he was bound to do so; and he complained of the conduct of the corporation; and, in conduty upon him, he left the school, giving sequence of the corporation throwing this no notice to the corporation. The corporation complained of his conduct, and he said, they had thrown duties upon him, which immediately expostulated with them, and quiesced in his representations, and admitted he was not bound to perform. They acthe justness of the course he had pursued. Mr. Edward Davis was succeeded by Mr. John Davis, in the year 1799, and he again was succeeded by a gentleman of the name of Parker, in the year 1813, or 1815. Both those gentlemen entered into express stipulations with the corporation, to teach reading, writing, and arithmetic; and, in pursuance of those stipulations, they, in addition to teaching those boys, who were sent there for the purpose of learntaught them reading, writing, and arithing Latin and the learned languages, metic. But the alteration, attempted to be introduced into the school about the year 1800, by the patrons of the school insisting, that the master should do that which he was not bound to do according to the original constitution of the school, cannot vary, in point of law, the nature and chaobservation which, I believe, has been racter of the school. It appears to me, (an stated very frequently from this seat,) that the power of nomination and appointment, the patrons of a school, when they exercise properly in imposing, new terms and condihave no right to impose, and act most imtions upon the master; because, in that respect, they are running counter to the laying the foundation for altering the genewill of the founder, and, at the same time, ral rules of the school, inasmuch as the eviparticular manner may have the effect of dence of a long continuation of acting in a altering the character and constitution of the school. It appears to me, therefore, tracing the history of this school from the notice, in the third year of the reign of King period at which it is first presented to our Charles the First down to this moment, there is no ground whatever for coming to any conclusion, that the original foundation of this school, which appears to have been a grammar-school, has been altered by any D |