High Court of Justice of Ireland - June 2, 1888 Judgement

CHAETJ; ET STATUTA

COLLEGII

SACROSANCT^ ET INDIVIDU^

TEINITATIS

REGINiE ELIZABETHJ^,

JUXTA DUBLIN.

VOL. II.
DUBLINII:

SUMPTIBDS ACADEMICIS

EXCUDEBAT G. WELDEICK. ^ jjL

MDCCCXCVin. I . ^f

ANNUAL ELECTION OF MEMBERS OF THE OOUNCIL.

507

Inatructions.

A lino is drawn througli the name of each person who
was elected on the first voting.

The Elector may write in words in column 4 opposite
the name of any person or persons who had not been
elected on the first voting the number of votes which he
gives to him or them respectively.

The total number of votes to be now given must not
exceed , the entire number given by the same

Elector on the first voting to any person not elected, but
all of them may be given to any one, or they may be dis-
tributed as the Elector thinks fit.

If more than the number of votes as above be given
the voting paper will be cancelled.

This paper must be returned to the Eegistrar of the
University on or before the day of November,

18 , or else the first voting paper will stand.

(Signed)

Trinity College, Dublin,

dai/ of ,18

Eegistrar.

TRINITY COLLEGE, DUBLIN,

v.

THE ATTORNEY-GENERAL AND OTHERS.

JUDGMENT

OF THE RIGHT HON. THE MASTER OF THE ROLLS, DE-
CIDING THAT A BEQUEST TO "THE CORPORATION OF
THE UNIVERSITY OF DUBLIN" VESTED IN TRINITY
COLLEGE.

[June Z, 1888.']

This case comes before the Court on a motion by the
plaintiffs on admissions in the pleadings. The plaintiffs
are the Provost, Fellows, and Scholars, of Trinity College,
Dublin, and the defendants are the Attorney-General, the
Chancellor, Doctors, and Masters of the University of
Dublin, and the Trustees and Executors of the will of the
late Eichard Tuohill Eeid, Barrister-at-Law, formerly of
Killarney, in the county of Kerry, and afterwards of
Eombay, in the East Indies.

The will of Mr. Eeid is set out in extenso in the plain-
tiff's statement of claim, except that in the will the testator
describes himself as LL.D., without stating, however, of
what University. The will bears date the 22nd of Sep-
tember, 1881. It commences by appointing the defendants,
Sir George Christopher Molesworth Birdwood, Knight,
M.D., of the India Office, and James Cornelius O'Dowd,
Deputy Judge Advocate-General, and Barrister-at-Law,

JUDGMENT, A. I). 1888.

JUDGMENT, A. D. IS

509

of No. 35, Great George's-street, Westminster, his execu-
tors.

The stateniont of claim alleges that the testator died on
the 11th day of February', 1883, at Rome, without having
revoked or altered his will, which was duly proved in the
Probate Division of Her Majesty's High Court of Justice
in England, by the defendants, George Christopher Moles-
worth Birdwood and James Cornelius O'Dowd, on the
2Dt]i day of April, 1883. The testator had no assets in
Ireland.

Hannah Eeid, the sister of the testator in his will
mentioned, died before him, on the 9th day of February,
1883 ; her life estate, therefore, never came into existence.
The ready money and casli at the testator's bankers were
sufficient for payment of his debts, funeral and testamen-
tary expenses, and the other expenses connected with the
administration of the estate.

The bequest in the will contained of all the testator's
shares or stock in the Great Indian Peninsula Eailway
Compiuij', and in the Bombay, Baroda, and Central India
Railway Company, is, for the sake of convenience, referred
to as tlie second bequest ; and the bequest of all the
testator's funds in Three per Cent. Consolidated Bank
Annuities is referred to as the third bequest.

The testator was, at the time of his death, possessed of
tlio sums of £2800 Great Indian Peninsula Railway
Company Guaranteed £5 per Cent. Stock, and £1904
Bombay, Baroda, and Central India Railway Company
Stock ; which sums became vested in his executors as
trustees of his will, for the purposes of the second bequest;
and he also died possessed of the sum of £6089 13s. id.
Consolidated £3 per Cent. Bank Annuities, transferable
at tlie Bank of England, which became vested for the
purposes of Die third bequest.

As to the second bequest, the plaintiffs say that there
is no such body, strictly speaking, as the Board of the
University. The defendants, the Senate of the University,
have been incorporated by Letters Patent, dated the 24th
July, 1857, under the title of The Chancellor, Doctors,
and Masters of the University of Dublin ; and as such
Corporation are, by the said Letters Patent, empowered
to hold and acquire such property, real and personal, as
may be given or bequeathed to them. Up to the present
the defendants have not acquired, nor do they now hold,
any property.

As to the third bequest, the plaintiffs say " that Trinity
College, Dublin, is the only College in the University,
and is incorporated by the Letters Patent or Charter of
the 34th year of Queen Elizabeth, which was confirmed
by the Letters Patent, or Charter of the 13th Charles I.,
under the name of the Provost, Fellows, and Scholars, of
the College of the Holy and Undivided Trinity of Queen
Elizabeth, near Dublin, who are the plaintiffs in this
action. The Provost and senior Fellows of the said
College are by the said Charter and the Statutes of the
College constituted the Governing Body of the College,
and are known as the Board of Trinity College, Dublin.
There is no other body called or known as the Board
either in the College or University." That statement
must be taken as uncontradicted.

The defendants, the executors, having been informed
of the facts aforesaid, were advised that they could not
safely give effect to the second and third bequests without
the protection of the Court, and accordingly they lodged
in the Chancery Division of the High Court of Justice in
England, to the following credit : — " In the matter of the
trusts of the bequest by the will of the late Richard Tuo-
hill Reid, in favour of the Corporation of the University

10

JUDGMENT, A. D. 1888.

of Dublin, in trust to fouud a Professorship of Penal
IjOgislation " — tbe said sum of £1904, Bombay, Baroda,
and Central India Railway Company Stock ; and the sum
of £'2-'50U, Great Indian Peninsula Railway Company
Guaranteed £5 per Cent. Stock, part of the said sum of
i'-'ftOO like stock ; and £339 8s. Gd. cash, representing
the said sooond bequest, and the dividends that had
accrued in respect thereof up to the 1st July, 1884, less
by a sum of £702 16s., paid by the same defendants in
respect of duty on the capital of the second bequest ; and
£2(J '2.S. for duty ou the income thereof, and £27 10s.,
being a moiety of the costs of and incident to the lodgment
in Court.

The defendants, the executors, also lodged in the Chan-
cery Division of the said High Court of Justice in England,
to tlie following credit :— " In the matter of the trusts of
tlie bequest by the ' Will of the late Richard Tuohill Reid,
in favour of the Corporation of the University of Dublin,
in trust to found in Trinity College, Dublin, additional
8izarshii)s, Exhibitions, and for other purposes '—the sum
of £54G3 17s. Ihl. Consolidated £3 per Cent. Bank
Annuities, part of the said sum of £6089 13s. M., like
annuities, and £217 4a'. 8</. cash, representing the third
bequest, and the dividends that had accrued in respect
thereof, up to the 5th July, 1884, less by a sum of £616
lis G(/., paid by the same defendants in respect of legacy
duty ou the capital of the tliird bequest ; and £16 9s.
for duty ou the iucome thereof, and £27 10s. being the
renuiining moiety of the costs heroiubefore mentioned.

Tiio result of this proceeding was the payment of 10
per cent, legacy duty for both the second and third
bequests, from which duty they would probably have
been free if lodged in this Court, inasmuch as the law in
England is dilforout from that in this country. Here no

JUDGMENT, A.D. 1888.

511

duty is payable on bequests for purposes merely charitable
in Ireland.

The statement of claim then states that the testator,
•who was born in the County of Kerry, was educated in
Trinity College, Dublin, where he took the degree of
Master of Arts. He was afterwards called to the Irish
Bar, and went to Bombay in the year 1853, after which
period he never returned to Ireland.

The statement of claim then avers that all the endow-
ments, estates, and property by which the University of
Dublin is sustained, including all endowments for gpacial
purposes, are vested in the plaintiffs, and managed by the
Board of Trinity College. The appointment and election
of the professors in the University was also vested in the
said Board up to the time when the Council was constituted
by Letters Patent of the 4th day of November, 1874. By
these Letters Patent the nomination to all professorships,
with certain specified exceptions, is no"a^vested in the
Council, subject to the approval of the I^rd ; and since
the constitution of the Council any proposed alterations
in the rules and regulations respecting any studies, lec-
tures, or examinations (not connected with the Divinity
School), and also any proposed alterations in tlie rules and
regulations respecting the qualifications, duties, and tenure
of ofilce of any professor (not connected with the Divinity
School), require the approval both of the Board and of the
Council. No new professorship can now be created or
founded by the Board without the consent of the Council.
The Council consists of the Provost, or in his absence
the Vice-Provost, of Trinity College, and sixteen other
members elected out of the members of the Senate of the
University.

The Board of Trinity College elect to all the existing
sizarships, after the usual examination of candidates.

:i->

JUllOMENT, A. D. 1888.

The statement of claim then states that the plaintiffs
are dosirous that a scheme or schemes may be settled and
approved by the Court for the regulation and management
of the said charitable bequests respectively, and for the
application of the income of the said stocks and securities,
pursuant to the trusts by the said will declared with
respect to the same respectively, and that the plaintiffs
may be at liberty to apply in the Chancery Division in
the High Court of Justice in England for the transfer to
the credit of this action of the several securities and
moneys standing to the credits respectively hereinbefore
mentioned.

The plaintiffs claim

1. That the trusts of the will of the testator Richard

Tuohill Eeid, with respect to the second and
third bequests respectively, may be carried into
e.xecution under the direction of the Court.

2. That the plaintiffs may bo at liberty to apply in

the Chancery Division of the High Court of
Justice in England in the said matter, under the
Trustee Eellof Act, for the transfer and payment
into this Court, to the credit of this action, of
the several securities and moneys which now
are, or shall at any time hereafter be, standing
to the said credits hereinbefore mentioned.

3. That a scheme or schemes may be approved by the

Court, directing the regulation and management
of the said charitable bequests respectively, and
the application of the income of the said stocks
and securities, pursuant to the trusts of the said
will, declared with respect to the same respec-
tively.

JUDGMENT, A. D. 18S8.

4. That for the purposes aforesaid all necessary
accounts may be taken, inquiries made, and
directions given, and

Such further relief as the case may require.

513

The Chancellor, Doctors, and Masters of the University
of Dublin have filed a statement of defence, by which
they admit the making of the will as set forth in the
statement of claim, and the statements of fact and the
documents in the statement of claim mentioned, and
submit that they are the body designated as the Corpora-
tion of the University of Dublin in the will ; and that the
stocks and funds which are in the statement of claim
designated as the 2nd and 3rd legacy bequests respectively
should be transferred and paid to them for the purposes of
the will ; and state that they are desirous that a scheme or
schemes directing the regulation and management of the
said charitable bequests respectively, and the application
of the income of the same may be settled and ap-
proved of by the Court as in the statement of claim is
prayed.

The Attorney- General has delivered a statement of
defence, in which he states in substance that he has no
knowledge of the several matters in dispute, but submits
that the legacies are good charitable bequests.

The principal question for decision therefore is. What
is the body which the testator designates as " the Corpo-
ration of the University of Dublin " ?

Trinity College, Dublin, was founded by Queen Eliza-
beth, by a Charter dated a.d. 1592, in the 34th year of
her reign. That Charter is of great importance in deter-
mining the constitution of Trinity College, and of the
University of Dublin.

VOL. II. 3 G

JUDGAtENT, A.D. 1888.

JUDGMENT, A. D. 1888.

515

'J^hat Cliarter recites : —

" Cum dilectus subditus noster Henricus Ussher Arehi-
diaeoims Dubliniensis nobis humiliter supplioavit, nomine
civiiatis Dubliniensis, pro eo quod nullum Collegium pro
Scholaribus in bonis Uteris et artibus erudiendis infra
regnum nostrum Hibernise adhue existit ; ut unum Colle-
gium nmti-cm TJniversitatem juxta eivitatem Dubliniensem
ad meliorem educationem, institutionem, et instruotionem
Scliolarium et studentium in regno nostro prsedioto erigere,
f uudare, et stabilire dignaremur ; " and goes on to pro-
vide : — " quod de caetero sit, eterit, unum Collegium mater
Univcrsitatk in quodam loco vocato Allhallowes juxta
Dublin praidictum, pro eduoatione, iustitutione, et instruc-
tiono juvenum, et studentium in artibus et facultatibus,
perpetuis futuris temporibus duraturum, et quod erit, et
vocabitur collegium sanct^ et iNDivinUjE trinitatis

JUXTA DUISLIN A SEllENISSIMA REGINA ELIZABETHA FUNDA-

TUM. Ac illud Collegium de uno Praaposito, et de tribus
Sociis nomine plurium, et tribus Scholaribus nomine
plurium, in perpetuum continuaturum erigimus, ordina-
mu,3, creamus, fundamus, et stabilimus firmiter per
lirtesentes." («)

Tlien, after nominating the first Provost, the Fellows,
and Scliolars, the Charter proceeds to incorporate them : —

" Per nomen propositi, sociokum, et scholarium

COLLEGII SANCT./E TRINITATIS ELIZABETHJE REOINjE JUXTA

DUliLIN."(i)

Then follow directions as to the election in future of
tlie Provost, Fellows, and Scholars who are empowered
to acquire and hold manors, lands, tenements, and heredi-
taments for the maintenance of the College, and to sue

(«) Coll. Stat., vol. i., p. 2. (i) IHd., p. 3.

and be sued by their corporate name ; and the Charter
continues in these most important words : —

" Et cum gradus quosdam in artibus et facultatibus
constitui Uteris fuisse adumento compertum sit, ordina-
mus per prsesentes, ut studiosi in hoc CoUegio sanctse et
individuse Trinitatis Elizabethse Reginae juxta Dublin,
libertatem et facultatem habeant, gradus tum Baccalau-
reatus, Magisterii, et Doctoratus, juxta tempus idonemn,
in omnibus artibus et facultatibus obtinendi." (a)

The " tempus idoneum " here probably refers to the
period at which the first Undergraduates would be ready
to receive degrees. The Charter proceeds : —

" Hoc semper iterura proviso, ut cum hujus Collegii
Socii septem integros annos post gradum Magisterii ibi
assumptum adimpleverint, tum e Sociorum numero amo-
veantur, ut alii in eorum locum suifeoti, pro hujus
Eegni et Ecclesise beneficio, emolumentum habeant; et
ut INTRA SE pro hujusmodi gradibus assequendis habeant
libertatem, omnia acta, et scholastica exercitia adimplendi,
quemadmodum Prseposito, et majori parti Sociorum
visum fuerit, ac ut omnes personas pro hujusmodi rebus
melius promovendis, eligere, creare, nominare, et ordinare
possint, sive sit Procancellarius, Procurator, aut Procura-
tores (nam Cancellarii dignitatem honoratissimo et fidelis-
simo Consiliario, nostro, Guilelmo Cecillio, Domino
Baroni de Burghley, totius Anglise Thesaurario, delegatam
approbamus), et ut posthac idoneam hujusmodi personam,
cum defuerit, pro hujus Collegii Cancellario PriBpositus,
et major pars Sociorum eligant, ordinamus."

This Charter was granted in 1592, and no other
Charter or Letters Patent were granted during Eliza-
beth's reign. In 1613 further Letters Patent were
((JTColl. St.it., vol. i., pp. 7, 8.

JUDOfilENT, A. I). 1S88.

granted by King James I. An interval of twenty-ono
■yPars ift^eiore ITaJ ^elapsed between them and tlie
Charier of Elizabeth ; and that Degrees must during
tliiit interval have been conferred on Students of the
College appears to me to be beyond doubt. Therefore
it must have been considered that the Charter of Elizabetli,
propi-io riijorc, conferred upon the College power to grant
degrees. Some body, duly authorized by the Crown,
must liave conferred them : since the granting of degrees
is a branch of the Royal j)rerogative, the Crown being the
fountain of hououi. The Chancellor, Vice- Chancellor,
and Proctors, wore not incorporated ; the Provost, Fel-
lows, and Scholars were : and it follows that they must
have conferred the degrees in the interval between tho
Charter of Elizabeth and that of James I., though,
no doubt, in tliis the College acted through the Vice-
Cliaucellor. ^ v-

The Charter of James, after reciting the Charter of
Elizabeth, proceeds : —

"CuMQTJK DICTUM COLLEGIUM SIT ET HABEATUK UNI-
VEIISITAS, AC HAliEAT, GAUUEAT, ET UTATUR OMNIBUS ET
SlNOirLIS LIliEllTATIBUS, PIIIVILEGIIS, ET IMMUNITATIBUS
AD UA'IVERSITATEM SIVE ACADEMIAM PERTINENTIBUS SIVE

spECTANTiBus . . . idoirco opera) pretium et necesarium
videtur, quod dictum Collegium et universitas hab-
eant plenam et absolutam potestatem duos Burgenses de
seipsis eligondi, eosque mittendi ad supremam illam
curiam Parliamenti, in lioo regno nostro IlibernijB', de
tempore in tempus, teneudi : in qua quidem curiA hujus-
modi Eurgeiises sic electi et missi, juxta formam univer-
sitatis Oxouiensis ot Cautabrigiensis in Anglia usitatam,
uotum faciaiit verum statum dicti Collegii ae univer-
silatis ibidem ; ita ut nullum statutum aut actus generalis

JUDGMENT, A.D. 1888. 517

dicto CoUegio ac universitati privatim, sine justa ac
debita notitia et informatione in ea parte habitcL, prseju-
dicit aut noceat ; sciatis quod nos, de gratia nostra
speciali, . . . Voluimus et concessimus, ac per prasentes
pro nobis hseredibus, et successoribus nostris, voluimus et
consedimus, prasfatis Prsoposito, Sociis, et Scholaribus
dicti Collegii, et successoribus suis, neenon ordinamus et
stabilimus per prsesentes, perpetuis futuris temporibus
quod sint et erunt in dioto Collegio ac universitate juxta
Dublin duo Burgenses Parliamenti nostri hseredum et
successorum nostrorum." {a)

The words just quoted, such as " Oumque dictum Colle-
gium sit et habeatur universitas," " et utatur omnibus
et singulis libertatibus privilegiis et immunitatibus ad
universitatem pertinentibus." " Collegii et universitatis
prasdictiB," "quod dictum collegium etuniversitashabeant";
again, the same words, " dicti Collegii ao universitatis,"
"dioto Collegio ac universitate juxta Dublin," show_that
fhe framers of the Charter considered Trinity College
and the University of Dublin as so inseparably connected \
that their titles are used throughout as synonymous '\
terms, ^^To whom is the power of electing two members
given P " Praefatis Prseposito, Sociis et Scholaribus dicti

Collegii," ^

Thk Charter recites that Trinity College was founded
by Queen Elizabeth, " ad exemplum academiarum nostra-
rum Oxoniensis et Cautabrigiensis." Oxford and Cam-
bridge are no doubt in some respect analogous Universities.
But they are essentially different in this that they each
contain several Colleges; and I do not think that the /
reference to them in this Charter indicates an intention /
that Trinity College and the University, of Dublin should J
be separate bodied -^

_. . («) Coll. Stat., vol. i., pp. 309, 310.

li.S JUDGMENT, A. D. 1888.

The next Charter is that of 13 Charles I., which bears
^datein 1637. («) It recites the Charter of Elizabeth, and
states that by it she granted " quod deinceps asset unum
• Collegium mater Universitatis, in quodam loco vooato
Allhallowes juxta Dubhn." It then recites the incorpora-
• tiou of tlie College ; its power to acquire and hold lands for

/ the maiutenance of the College ; its Capacity of suing and

/ being sued in actions, real, personal and mixed ; of having

a common seal ; the power of the Provost and majority
of the Fellows to make laws, statutes, and ordinances, for
the goverumeut of the College ; and that " eadem nuper
regiua per easdam literas suas patentes ordinaverit, ut
studiosi in dicto Collegio libertatem et facultatem habereut
gradus turn Eacealaureatus, Magisterii et Doctoratus,
, juxta tempus idoneum, in omnibus artibus et faculta-

tibus obtinoudi ; et ut iutra se, pro hujusmodi gradibus
assoquendis haberent libertatem omnia acta et scholastica
exercitia adimplendi, quemadmodum Proeposito, et majori
i parti Sociorum usum foret." The Charter confirms the

I Cluuter of Elizabeth in respect of its above recited pro-

\ visions, and provides, with the consent of the Provost,

\ Fellows, and Scholars, tliat Fellows should not be removed

at llio end of seven years, as provided by the Charter of
Elizabeth : recalls the power of the Provost and Fellows
to make statutes and ordinances, and reserves that power/
to the Crown ; repeals those already made, and substitutes
an amended code.

In further Letters Patent of the same year (13
Charles I.), I find this recital (after referring to the gteat
advantage of schools and universities in England) : —
"Quod et reipsa fecit regina Elizabetha Celebris memoriae,
Collegium Sanctse Triuitatis juxta urbem Dubliniensem

(rt) Coll. Stat., vol. i., p. 10.

^.

JUDGMENT, A. D. 1S88.
extruendo; quod etiam annuls reditibus dotavit et

ACADEMIC PRIVILEGIIS ORKAVIT. (rt)

The Letters Patent then proceed to establish certain
laws for the government of the College. The Provost and
seven senior Fellows are to form a Board. The Board
are to have the government of the College, the election of
the Fellows, officials, &c., and the conferring of degrees

" GRAUUUMQUE COLLATIONES DEFINIANT, ET CONCLUDANT."

A more clear assertion that the College had the n'ght of
conferring degrees it is not easy to imagine.

The next Letters Patent which I have to refer to are
those of the 34 George III. (a.d. lyQ"?). They are
addressed to the Provost and senior Fellows, and relate
to the admission of Roman Catholic students to degrees,"
and announce : . . . " quod omnibus subditis nostris,
qui religionem Pontificiam sive Eomano-Catholicam pro-
fitentur, liceat et deinceps licebit in dictum Collegium
admitti, atque gradus in dicta academia obtinere, prasstitis
prius omnibus exercitiis per leges et consuetudines
academise requisitis, aliquo statute dicti Collegii, aut
statute, regula, aut consuetudine quacunque dictis aca-
demise in contrarium non olastante."

Now, pausing here, if aic^ijig else had happened, what
was the position- of thg/University. .of Dublin P^^here
was no separate incorporation of it." If there had been
it must have been by Royal Charter by virtue of the
prerogative of the Crown. There was no express creation
of it apart from the College. The College had the power
of electing the Chancellor and the other officers, and of
" defining and determining " the conferring of degrees.
The College was supreme ; and the University was a
branch or department of it, if indeed the College itself
was not more accurately the University. That it was so

(a) Coll. Stat., vol. i., p. 30.

519

. V

v

•>() JCIDQMKN'T, A. 11. 18S8.

considereil hy the framers of the Charter of James I.
appears from tlie expressions: "sit et habeatur Jini-
versitas," " acaJeiuite privilegiis oruavit," and fronfthe
power of the College to confer degrees " intra se." It
cannot therefore admit of douht that prior to the Letters
Patent of Q,ueon Victoria a gift to the " Corporation of
fho University of Dublin" would have meant a gift to
Trinity College, Dublin, and could have meant nothing
e!so.
' Both plu-ases, Triuitj^ College, Dublin, and University

I oF Dublin, are used interchangeably, as well in Acts of
I rarliameut as in the Charters and Regulations. The

-- ,' Fourth Article of the Act of Union of Great Britain and
I reland, 40 Goo. III. c. 88, is, " that four lords spiritual,
b)' rotation of sessions, and twenty-eight lords temporal
eh'cted for life by the peers of Ireland shall be the number
to sit and vote on the part of Ireland, in the House of
Lords of the United Kingdom ; ixnd one hundred oom-
}noners (two for each county in Ireland, two for the city
of Dublin, two for the city of Cork one for the University
of Trinity College, and one for each of the most consider-
able cities, towns, and boroughs) be the number to sit and
vote, on the part of Ireland, in the House of Commons of
the Parliament of the United Kingdom. («)

By the Reform Act of 1832, 2 & 3 Wm. IV. c. 88,
section 11, it is (no doubt) enacted that "the city of
Limerick, the city of Watorford, the borough of Belfast,
and tJie Unicer&ity of J)iibliu shall each respectively return
one member to serve in such future Parliament, in addi-
tion to tJie member which each of the said places is now
by law entitled to return. But by sect. 70 it is provided
" that in addition to the persons now qualified to vote at

(«) Coll. Slat., vol. i., p. 316.

JUDGMENT, A, D. 188S.

521

the election of a member to serve in Parliament/o*- the
University of Dublin " " every person being of the age of
twenty-ono years, who has obtained, or hereafter shall
obtain, the degree of Master of Arts, or any higher
degree, &o., or a Scholarship or Fellowship in the said
University, shall be entitled to vote for the election of a
member or members to serve in any future Parliament for
the said University," &c. By the University of Dublin
in this context Trinity College must also be meant, since
Scholarships and Fellowships belong to the College and
not to the University proper.

The Act of Settlement, too, speaks of the lands of
the University, meaning obviously the lands of Trinity
College, Dublin. The corporation of the College was at
that time the corporation of the University. There was
no other corporation but that of the College which, in the
words of the Letters Patent of James I., was declared,
and was held to be, a University " sit et habeatur univer-
sitas."

There is nothing in this view I think opposed to the
opinion of the late Mr. Blackburne, Vice-Chancellor of
the University. He said : —

" It is now, for any practical purpose, not necessary to
inquire whether the University was a corporate body
before the late Charter. But I may observe that through
the agency of the Chancellor, or the Vice-Chancellor, and
other proper officers, for whose perpetual appointment the
Crown made ample provision, the power to grant degrees
was insured to continue for all time. So and in like
manner, the suocessiou of members of the Senate was to
be for ever supplied out of the members of another body
expressly incorporated." [a)

VOL. II.

(a) Coll. Stat., vol. ii., p. 145.

3h

JLTJjraiEAn', A. IJ, 1888.

Mr. Bl.ickburne thus gives no positive opinion on the
qnostion. Nor is tlie view I have expressed opposed, in
my opinion, to the fundamental idea of College and
University. The Universities of Oxford and Cambridgo
are in some respects anomalous bodies, differing in con-
Tstitutiou from nearly all, if not all, other ancient Uni-
versities.
"~"~"Tu The Attornei/-Gciieial v. Ladi/ Downing and others
{Wilmot's Ca. and Op. 14), Lord Chief Justice Wilmot
says :—

"And, indeed, I think Universities and Colleges are
within tlie proper and genuine sense and meaning of the
words 'Schools of Learning.' (i-/) The places where the
puhlio exercises are performed are called the Schools.
An University is a great scliool, incorporated to instruct,
by their Professors and regular exercises, all who come to
stud^' there, and by degrees to give their students rank
and credit in the republic of letters, and which are quali-
fications for lucrative offices and employments in life. It
is a public scliool of divinity, physic, law, and all arts and
sciences. And colleges are schools of learning, furnishing
scholars for tlie universal school, which is a combination
of all tliose schools ; and in any other view than as schools
of learning they are as useless to society as iponasteries ;
and, therefore, I think they are not only within the equity
of tlie Act, but within the words of it. And I consider
this devise as made for the further augmenting of the
University : and for that reason the University, in its
corporate capacity, is very properly made a relator in this
information being materially and essentially interested
in the benefaction. For though the University is not a
corporation of colleges, but of matriculated members, and

(«) In die Statute 43 Eliz., c. 4, a. 1.

JUDGMENT, A. D. 1888.

all colleges are separate corporations, yet these colleges
attract and furnish the members to be matriculated, and
every new college enlarges the universal school, and by
increasing the number of scholars adds weight, dignity,
and strength to the University."

Generally speaking, a University and College are one
body. Tiie Universities of Bologna and Paris are both
leaching Universities, and Trinity College in this respect
appears to have resembled them.

We now come to the Letters Patent of the Queen (21
Vict., July 24, 1857). In them we find the following
recitals : —

" Whereas we are informed that the Senate or congre-
gation of the University of Dublin, consisting of the
Chancellor or Vice- Chancellor, Doctors in the several
faculties, and Masters of Arts in the said University, has
heretofore, for the last two hundred years and upwards,
been governed by certain rules or statutes, entitled :
' EegulfB seu Consuetudines Universitatis Dubliniensis
pro solenniore graduum collatone.' And whereas our
right trusty and right entirely beloved Counsellor, John
George, Archbishop of Armagh, Primate of all Ireland,
Chancellor of the said University ; our right trusty and
well-beloved Couusellor, Francis Blackburne, Doctor of
Laws, Vice-chancellor of the said University; and our
trusty and well-boloved the Provost and Senior Fellows of
the College of the Holy and Undivided Trinity, near
Dublin, have humbly represented unto us that the said
rules or statutes have, by lapse of time, become in many
respects obsolete and unsuited to the present state of the
said University and College, and doubts have been raised
as to whether tlie Provost and Senior Fellows of the said
College have power to alter and amend the same ; and the

523

,! t jrDCaiENT, A.D. 1888.

said Olianeellor, Vice-Cliancellor, Provost, and Senior
Fellows Lave therefore liumbly supplicated us to remove
the said doubts, and to grant \into the Provost and Senior
Fellows of the said College, and also unto the Senate or
Congregation of the said University, such further powers
as will onahlo them to revise, alter, or repeal the said rules
and usages relating to the conferring of degrees by the
said University, and to enact other rules or regulations
for the same purpose, to be binding and obligatory on all
members of the University." («)

Then the granting part of the Letters Patent is as
follows : —

" We are graciously pleased to accede to their request.
Know ye, therefore, that we, of our special grace, certain
knowledge, and mere motion, by and with the advice and
consent of our right trusty and well-beloved cousin and
counsellor George William Frederick, Earl of Carlisle, our
Tioutonant-Genoral and General Governor of Ireland, do,
by tliese presents, for us, our heirs and successors, enact
and confirm to the Provost and Senior Fellows of the
College of the Holy and Undivided Trinity aforesaid,
and unto the Chancellor or Vice -Chancellor, Doctors and
Masters of the said University, all such powers, rights,
and privileges, as by the Charters and Statutes of our
royal predecessors to the Provost, Fellows, and Scholars
of the College of the Holy and Undivided Trinity afore-
said, or to the University of Dublin aforesaid, have hereto-
fore been given, granted, or by usage and prescription
possessed, without any alteration or diminution whatever
as herein provided.

" And it is our will and pleasure that the Provost and
Senior Fellows of our said College of the Holy and Undi-

(■') Coll, Sua., vol, ii., pp. 135, I3P.

JUDGMENT, A. D. 1888.

vided Trinity shall have power, if they shall think fit, to
alter, amend, and repeal all laws, rules, or bye-laws,
heretofore existing, for the more solemn conferring of
Degrees by the Senate of the University aforesaid, and
to make, enact, and enforce, from time to time, such
additional laws, rules, and bye-laws, to alter or vary
the same for the like purpose as to them shall seem fit.
Provided always that no such new laws, rules, or bye-
laws, or emendations or alterations of such existing laws,
rules, or bye-laws shall be of force or binding upon the
said University until they shall have received the sanc-
tion of the Senate of the same in congregation lawfully
assembled." (a)

No law is to be proposed except by the Board. Then,
the constitution, powers, and privileges of the Senate are
defined and determined, and to carry out the obj Aain
view the Senate is incorporated in these words

" And our will and pleasure further is, that the Senate
of the said University shall bo, and continue to be, a body
corporate, and have a common seal, and shall have power
under the said seal to do all such acts as may be lawful
for them to do (in conformity with the laws and statutes
of the realm, and with the Charter and Statutes of the
College of the Holy and Undivided Trinity, and with the
Statutes, Laws, and Bye-Laws made or to be made in
pursuance of these our Royal Letters) under the name,
style, and title of the Chancellor, Doctors, and Masters of
the University of Dublin.

"It shall be further lawful for the said Chancellor,
Doctors, and Masters to apply the funds which may or
shall belong to the said University Senate for the promo-
tion of useful learning in the said University, subject to
{«) Coll. Stilt., vol. ii., pp. 136-137.

525

Tlien,
a^ are jk

1° I

JUDGMENT, A. D. 1888.

su(!li regulations as the Provost and senior Fellows of our
said College shall approve of or subscribe.

" And it shall bo lawful for the said Chancellor, Doctors,
and Masters of the said University, in their corporate
capacity as aforesaid, to have, hold, acquire, and receive
such lauds, manors, tenements, or other property, real or
personal, as may from the date of these presents, be given
or bequeathed unto them, by any person whatsoever, for
tlie encouragement of learning in the said University.
Provided also that such gift or bequest does not impose
an}' condition or obligation inconsistent with the Statutes
of tlie University in force at the time of such gift or
bequest, or inconsistent with the Charters and Statutes of
the College of the Holy and Undivided Trinity, near
Dublin." {(t)

it is on these Letters Patent and the incorporation
tlioroin coy talned of the Chancellor, Doctors, and Masters,
that the claim of the Senate, who are the defendants,
depends. In my opinion, that is not the incorporation
of the University of Dublin, but of its Senate merely.
" 133^ another Charter of the same reign another University,
■the Queen's University, has been incorporated. The
second Charter of the Queen's University (I have not the
first one at hand) is In these words : —

"We do will, order, . . . and found a University,
^vhich shall be one bod}' politic and corporate by the name
of the Queen's University in Ireland." ..." And wo
do further will and order that the said body politic and
corporate shall consist of a Chancellor, Senators, Secretary,
Professors, Graduates, and Students."

{,)) Coll. Slat., vul. ii., pp. M2-H5.

JUDGMENT, A. D. 1888.

Thus we find a Charter of the same reign, dated a few
years after the Charter incorporating the Senate, by which
a University was incorporated, consisting of a Chancellor,
Senators, a Secretary, Graduates, and Students, and in it
the persons precisely defined and described of wliich the
University is to consist. This is not an accidental cir-
cumstance. The advisers of Queen Victoria knew how to
incorporate a Umvei'sity when they meant to do so.
- — There is, however, another body, viz. the Council, which
•was established by Letters Patent of the 38 Vict. («) (No-
vember 4, 1874J, and to which it is said the will of Mr.
Eeid refers when he speaks of the " Board." I need not
allude in detail to its constitution : suffice it to say, it is
nowhere called the Board in any official instrument. The
contest here is between the College and the Senate.

There are therefore two bodies in existence, to either of
which the designation of corporation of the University of
Dublin may refer, and to one or other to which it must
refer : not with strict accuracy in either case, perhaps,
but sufficiently clearly to enable a gift to take effect
in favour of whichever is in fact meant. If the gift
had been to the " Senate ""or to the Chancellors, Doctors,
and Masters, there would have been no question, since
whatever belief one might have had of the intention of
the testator, the body would have been unmistakably
defined.

There is of course no reported case in point : Mostyn v.
Mostyn, 5 II. L. C. 155 ; Stringer v. Gardiner, 27 Beav.
35, 4 De Gex. & J. 468, are cases of gifts to known indi-
viduals where there is some inaccuracy in the name and
the description connected with it. Nor have Ellis v.
Iloustoun, 10 Ch. Div. 236, or Holmes v. Custance, 12
Ves. 279, any intimate bearing upon it.

(«) Coll. Stat., vol. ii., p. 372.

JUDGMENT, A. D. 1888.

Kilirrt'n Trusts, L. R. 7 Cli. 171, comes perhaps nearer
to the present case tluiu any of tliose whicli .were cited.
In that case a testatrix by a will made in 1868 gave a
legac)' to tlie " treasurer for the time being of the fund for
the relief of tlie widows and orphans of the clergy of the
diocese of Worcester, to be applied by him in the benefit
qf tlie ehaiity." Two societies made a claim — one had
been founded in 1777 for the relief of the widows and
orphans of the clergy of the diocese, at which time the
diocGso comprised only the Archdeaconry of Worcester.
Ill 1837 the Archdeaconry of Coventry was added to the
diocese, and in 1818 the Worcester Society altered its
title, so as to show that its operations were restricted to the
Arclideaconry of Worcester. The other society had been
founded in 1877 for the relief of widows and orphans of
clergy in the Archdeaconry of Coventry. The father of
the testatrix had been a subscriber to the Worcester
Society till his death in 1817. His widow had continued
tlie subscription till her deatli in 1860, and the testatri.K
had continued it from that time at an increased rate ; but
it did not appear that the testatrix or any of her family
had subscribed to the Coventry Society ; it was held by
Vice-ChaucellorMalins that the gift was to be treated as
a gift to an object, not to a particular society, but must
be apportioned between the two societies. But the Court
of Appeal held tliat tlie gift was a gift to a particular
societ)^ with a slight inaccuracy of description, and that
the Worcester Society was solely entitled. Lord Justice
James said: —

" Parol evidence is admissible to show which of the
two was meant. Evidence has always been admitted to
show whicli of two societies the testator knew, and to
whicli of them ho subscribed. Such evidence is admissible

JUDGMENT, A. D. 1888.

to remove an ambiguity, if there has been sufficient ground
laid to raise an ambiguity, and I am assuming against the
appellant that the Coventry Society have raised an ambi-
guity. The fund must, in my opinion, be paid to the
treasurer of the Worcester Society."

Lord Justice Mellish : " I am of the same opinion.
The language of the bequest shows that the testatrix had
some particular society in her mind, and the question is,
What Society ? There is no difference between the course
to be adopted hero and in any other case of finding who
answers the description given in a will of a legatee. If
there was no society answering the description sufficiently
to enable it to claim the legacy, it might be that the Court
would carry the gift into effect as a gift for the relief of
the widows and orphans of the clergy of the diocese.
Here, however, I think it clear that the appellants come
near enough to the description to be entitled to the legacy,
if there was no other society to compete with them. There
is a description of the society by its old name ; that name
has been changed, but that object is precisely the same as
at first, and the old name is wholly inapplicable to it.
Then, assuming another society to come near enough to
the description to have ground for a claim, parol evidence
is admissible to remove the ambiguity, and the evidence
given is decisive."

This, in short, is a case of latent ambiguity, and in such
cases the rule is (when the fact of ambiguity is shown)
first to see whether the other words of the will afford
grounds sufficient to enable us to decide between the two
conflicting bodies, and if not, then to admit extrinsic
evidence.

The extrinsic evidence in the ease, or rather the ex-
trinsic facts admitted without proof, are aU the one way.

VOL. II. 3 I

529

y.'A) JUDGMENT, A.D, 1888.

Tlie testator had left the College and University long

Leforo the Senate was incoi-porated or the Council heard

of. It was to Trinity College and its University of

^, Dublin inseparably alid undistinguishably blenHed with

• "TT, that he owed his training aiimiis degree.

' * But in the words of the will itself are to be found
indications which leave to my mind no doubt as to what
'' ]iis intention was. He uses the words University and

College as loosely as the Ijogislature and the Crown use
thorn. First he bequeaths all the books which he may
die possessed of "to the Librarian for the time being of the
University of Dublin." There is no Librarian of the
University of Dublin or of the Senate of the University
of Dublin. There is a Librarian of Trinity College,
Dublin.

Secondly, the testator bequeaths his shares or stock in
the Groat Indian Peninsula Eailway Co., &c., to his trus-
tees for the purpose of paying the same to the Corporation
of the University of Dublin, to endow in the said Univer-
sity a Professorship of Penal Legislation, provided that it
shall bo lawful for the Board of the University to assign
any other duties which they may consider proper to bo
jjorfornied by said Professors so as to make the study of
Ponal Legislation a regular branch of instruction in the
Law School of the University. And I empower the said
Board to award prizes annually for proficiency in the said
hranoli of legal science, &c. The word Board has a well-
defined meaning in Trinity College. It means the Provost
and Senior Fellows. It was contended by Mr. Twigg, on
behalf of tlie defendants, that the word is synonymous
with Council. In my opinion the testator did not mean
to designate a body which was not constituted till long
after his connexion with Trinity College ceased, and his
use of the words, " Board of the University," affords a key

JUDGMENT, A.D. 1888.

to what he meant by the Corporation of the University
of Dublin.

Thirdly, the testator bequeaths his Three Per Cent.
Consolidated Bank Annuities to the Corporation of the
University of Dublin, "to found in Trinity College, Dublin,
additional Sizarships, or Exhibitions in the nature of
Sizarships, not to exceed five in number, open only to
students of limited means, natives of the County of Kerry,
who, having failed to obtain the ordinary Sizarship of tlie
College, may be deemed to have shown sufficient merit :
such Exhibitions to be held on conditions similar in all
respects to those upon which ordinary Sizarships are held
in the said College, and not to preclude such Exhibitioners
from obtaining any other Exhibitions or Prizes to which
an ordinary Sizar would be eligible ; and the Board of
the said University shall determine the annual stipend to
be allowed to each suoh Exhibitioner, or the privileges in
lieu of such stipend, in such a way as to place him with
respect to exemption from fees, free commons, and free
rooms, on a footing similar to that of ordinary Sizars.
What Board ? Plainly the Board of the same Body—
the same Corporation to which he made the bequest, " and
I empower the said Board to apply the residue of such
income (if any) in such manner as they may think best
calculated to encourage superior education in the said
county, as, for instance, by assigning from time to time
stipends, to suoh schoolmasters as may distinguish them-
selves in preparing students for the said University, such
stipends to be given on condition that such master or
masters shall undertake to prepare, free of expense, as
day scholars a certain number of boys of limited means
for the Sizarship Examinations of the University, or in
such other way as to the said Board may seem most effec-
tual and expedient for the promotion of superior education

SCHEME SETTLED BY THE COURT FOE

ill the said county." There are no Sizarships in the Uni-
rersity ; they are in the College. There are no such
Examinations as Sizarship Examinations of the Univer-
sity. They are hold in and by Trinity College. In my
opinion, treating the question as one of intention, the
testator has clearly shown on the face of the will itself
that what he meant by the Corporation of the University
of Dublin was the Corporation of Trinity College. I am
bound to give eii'ect to that intention unless it is encoun-
tered by some rule of law. I have already shown at, I
fear, too great length, that the phrase " Corporation of the
University of Dublin " has no such defined meaning as in
a case like the present, excluding all inquiry as to par-
ticular intention ; and I have therefore no hesitation in
pronouncing a decree for the plaiutiils.

SCHEME SETTLED BY THE COURT

For tlte Ecffulation and Management of the Reid Professorship and
Sis/irshij) Charities, and the Funds and Property thereof.

1. The Charity founded by the Will dated the 22nd
September, 1881, of the late Richard Tuohill Eeid, Esq.,
Barrister-at-Law, formerly of Killarney, in the county of
Kerry, and afterwards of Bombay, in <^he East Indies, and
by tlie said Testator, endowed with all the shares and
stock belonging to him in the Groat Indian Peninsula
Railway Company, or in the Bombay, Baroda and Central
India Railway Company, shall be called " The Reid Pro-
fessorship," and the Charity founded by the same "Will
and by tlie same Testator, endowed with all funds belong-
ing to him in the Three per Cent. Consolidated Bank
annuities, shall bo called " The Reid Sizarship."

THE MANAGEMENT OF THE BEID CHARITIES.

2. The Provost, Fellows and Scholars of the College of
the Holy and Undivided Trinity of Queen Elizabeth, near
Dublin, hereinafter called "the said College," shall be the
Trustees of the Endowments of the above-mentioned
Charities, respectively.

3. The Endowment of the Reid Professorship shall
consist of the sums of £2300, Great India Peninsula
Railway Company Guaranteed £5 per Cent. Stock, and
£1904 Bombay, Baroda and Central India Railway
Company Stock, and £1176 13s. 5d. Government Stook,
representing the dividends that have accrued on the said
Railway Stocks, respectively, subject to proportion of costs
of suit, together with such sums (if any) as may be received
for duty paid, and shall be held by the said College when
the same shall have been transferred to them, upon trust,
either to continue the said sums of Stook respectively, in
their present state of investment, or to sell the same or
any part thereof, respectively, and invest the proceeds of
such sale or sales in or upon any investment in which
trust funds or cash, under the control of the Chancery
Division, may, for the time being, be authorized by law
to be invested with power" to vary such investments from

time to time.

4. The said College shall stand possessed of the said
Endowment of the Reid Professorship, and of the divi-
dends and income thereof, upon trust, to endow thereout
a Professorship to be called " The Reid Professorship of
Penal Legislation, Constitutional and Criminal Law, and
the Law of Evidence." There shall be paid out of the
yearly income of the said Endowment a salary to such
Professor not exceeding £200 per annum. The College
shall, after open competition and examination, appoint to
such Professorship a member of the Irish Bar, who shall
be a graduate in arts or in law (not honorary) of any

533

SCHEME SETTLED BY THE COURT FOR

university. Such Professorshiji shall not be held for a
loiiger period thau five years by any one Professor. Every
sueli Professor shall deliver at least twelve lectures every
3'ear, whieli shall be open to the general public, and shall
publish, at his own risk and expense, at least six of such
l(?ct lives every year. And in case any Professor shall
niiike default in delivering twelve such lectures within the
year, or in publishing at least six of such lectures within
the year following, tliea the said Professorship shall be
considered vacant and open to fresh competition.

5. It shall be lawful for the said College, upon pro-
viding such additional emoluments from Students' fees or
other sources, as the said College shall deem reasonable,
from time to time to increase the minimum number of
lectures to be delivered or published by the said Professor,
and to assign any otlier duties which the said College
iini}'- consider proper to be performed by such Professor,
so as to make the study of Penal Legislation, Constitu-
tional and Criminal Law, and the Law of Evidence a
r<>gular branch of instruction in the Law School of the
University.

(.1. The said Colloge may, out of the residue of the in-
come of the said endowment (if any) pay reasonable fees
to the Examiners at tlie competition for said Professorship,
and otlier expenses attending same, and award prizes
annually for proficiency in tlie said branches of legal
science, and may also award a premium at every or any
competition for such Professorship to the candidate who
shall stand next in merit to the successful candidate, and
who would, if he had stood first in merit, have been eligible
for such Professorship.

7. The endowment of tlie Peid Sizarship shall consist
ol the sum of £6189 66'. SiL, Consolidated Bank annuities,
subject to proportion of costs of suit, together with such

THE MANAGEMENT OF THE REID CHARITIES.

sums (if any) as may be received for duty paid, and shall
be held by the said College when same shall have been
transferred and paid to them upon trust, either to continue
the said Government Stock in its present state of invest-
ment, or to sell the same or any part thereof, and invest
the proceeds of such sale or sales in or upon any suoh
investment as hereinbefore authorized, with respect to the
endowment of the Reid Professorship, with power to vary
Buch investments from time to time.

8. The said College shall stand possessed of the endow-
ment of the Reid Sizarship, and of the dividends and
income thereof, upon trust, to found additional Sizarships
in the said College, or Exhibitions in the nature of
Sizarships, not to exceed five in number, open only to
students of limited means, natives of the county of Kerry,
wffo, having failed to obtain ordinary Sizarships, may be
deemed to have shown sufficient merit. Such Exhibitions
to be held on conditions similar in all respects to those
upon which ordinary Sizarships are held in the said
College, and not to preclude suoh Exhibitioners from
obtaining any other exhibitions or prizes, for which an
ordinary Sizar would be eligible, and the said College
shall determine the annual stipend to be allowed to each
such Exhibitioner, or the privileges in lieu of suoh stipend,
in such way as to place him, with respect to exemption
from fees, free commons and free rooms, on a footing
similar to that of ordinary Sizars.

9. The said College may from time to time apply the
residue (if any) of the income of such last- mentioned
endowment, in paying the usual fees to the Examiners at
the Examinations for such Sizarships, and in such manner
as they may think best calculated to encourage superior
education in the said County, as, for instance, by assigning
from time to time stipends to such schoolmasters as may

535

KEID PROFESSORSHIP AND SIZAUSIIIP CHARITIES.

distlngiiisli themselves in preparing students for Trinity
College, Dublin, sucli stipends to be given on condition
that such Master or Masters shall undertake to prepare,
free of expense, as Daj'- Scholars, a certain number of boys
of limited means for the Sizarship Examination of the
(yollego, or in such other way as to the said College may
seem most eifectual and expedient for the promotion of
superior education in the said County.

10. If any difficulty shall at any time hereafter arise
in the administration of the said Charity endowments, or
either of them, the said College may, at any time, apply at
Chambers, on summons, for direction in respect thereof.

A. M. Porter, M.E.

Filed, 7th AiKjmt, 1888.

William Sullivan, C.R.W.

DECEEE, A. D. 1880.

EXTRACT FROM DECREE OF THE BOARD AND SENATE,
[June S5, 18S0.}

In par. 1, cap. iv. of the Regula Univ. to be
inserted after the words " coram Senatu expo-
nenda " : —

Necnon qui ex consensu Prsepositiet Sociorum
Seniorum atque Senatus ad gradum promoveatur
Jure dignitatis se regi a secretis conciliis' sit aut
si Episcopi aut Judicis summse curiae adscripti
munere fungatur, modo sit Baccalaureus in Arti-
bus et tempus a suscepto Baccalaureatus gradu
suscepto per leges Acadamia requisitum com-
pleverint.

[For the par. cap. iv. above referred to, see
a. 168, note v.']

537

VOL. H.

3k