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![handle is hein.slavery/ssactsengr0813 and id is 1 raw text is: FENWICK V. GREENWELL
persons as might attend them, and the duty of appointing them is no otherwise
annexed to the mere property of the college, than by the obligation to pay certain
annual sums of money, and is not of the nature of a trust, the execution of which it
is within the jurisdiction of this Court to enforce, but the [410] observance of which,
according to the statutes and ordinances of the founder, is to be regulated and
enforced and adequately provided for by the authority of the visitor, then the breach
of duty, whatever it may be, ought to be redressed by the visitor, and not here.
The school is not a separate foundation. The licence, which the founder obtained
to found his college, contained no specific reference to a school, but gave authority
to make such statutes and ordinances as were proper for the regulation of the college ;
and the statutes made to regulate the college, in pursuance of the licence, directed,
that there should be a schoolmaster and usher, to be hired and removed by the
president; in other words, the president had imposed on him the duty of engaging
and removing a schoolmaster and usher. Certain stipends are directed to be paid to
the master and usher, out of the common goods of the college, and they are to have
chambers and weekly commons, equal to those of the fellows of the college; but there
is no other endowment of the school. A building was erected for the school, but no
property is otherwise specially set apart or appropriated to the use of the school, or
for its maintenance and support; and, subject to the specific payments, for specific
purposes, including fixed stipends to the master and usher, the revenues of the
college belong to the college, for its own use, subject indeed to the performance of
all duties incumbent on the college to perform, but not subject to any trust to be
executed in this Court.
The college has, no doubt, a very important duty to perform, with reference to
the school, and the performance of that duty may be enforced by proper authority;
but, unless it be a duty founded on a trust which this Court can execute, the
performance of the duty is not [411] to be enforced here. And on the best con-
sideration which I have been able to give to the subject, I am of opinion, that this
Court has not jurisdiction to give the relief which is here asked. Though there is
sufficient proof of the duty or obligation, there is not, in my opinion, evidence of a
trust, as the word trust is understood in this Court.
I must therefore dismiss this information, but considering what has been done
with the school, as appears by the evidence, and the erroneous view which the
Defendants admit they have taken of it, and the colour of right under which the
information has been prosecuted, I think I shall not do wrong in dismissing it
without costs.
The information may have been productive of great benefit, and I have read with
satisfaction in the answer, and heard it re-stated at the Bar, that the Defendants
intend, even without any interposition of authority, to render the school much more
efficient and useful than it has for a long time been.
E412] FENWICK v. GREENWELL. July 8, 9, 12, 24, 1847.
[S. C. 11 Jur. 620.]
Trustees made personally responsible for the consequences of their neglect to enforce
a covenant contained in a marriage settlement.
By a marriage settlement it was covenanted and agreed, that £5000 consols, part of
the wife's property, should be transferred to trustees, upon certain trusts for the
husband, wife, and children. At the time of the settlement, a sum of £4946 was
standing in the name of the wife; but the trustees took no steps to enforce a
transfer, and it was sold out and misapplied by the husband. Held, that the
trustees were personally responsible for the loss ; and, secondly, that they were
not relieved from their liability, by the trustee indemnity clause, declaring that
they should not be liable for any casual or involuntary loss, without their wilful
default, but for such monies only as should actually come to their hands.
By a marriage settlement, a fund was limited to the husband for life, with remainder
to his wife absolutely if she survived ; but if she predeceased him, then for all the
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