ambler case doctor potter and other against doctor chapman and doctor paul at  Lincoln inn hall June see Welsh v bishop of Lincoln l r c p archbishop potter  devise his options to trustee regard be have in the disposition of they accord  to their discretion to his old son dr p the husband of his daughter his  present and former chaplain c hold a personal trust and the treasurership of  Chichester be vacant one of the trustee may present the other he be within the  description in the will see the observation of Lord Eldon on the principle of  this case in brown v Higgs Ves see also Ves lib Reg b foe S c dick doctor  potter the late archbishop of Canterbury by his will devise as follow item I  give and bequeathe unto my executor doctor Andrews since decease doctor Paul  and doctor chapman all my options in trust nevertheless that in dispose of the  say options regard be have accord to their discretion to my old son doctor  potter archdeacon of Oxford to my soninlaw husband if my daughter to my  present and former chaplain and other my domestic particular doctor Tunstall  my chaplain and doctor hall my librarian also to my worthy friend and  acquaintance particular to the reverend doctor Richardson the treasurership of  Chichester be one of the options and become vacant doctor Paul present doctor  chapman to the bishop to be install bill by plaintiff to set aside the  presentation and for a injunction the latter be obtain till answer or further  order and on come in of the defendant answer motion be make on Thursday last  to have the injunction continue until the hear of the cause which be adjourn  till this day in the afternoon for the reply and opinion of the court Lord  Hardwicke c two head of argument have be make use of by the counsel for the  plaintiff saint that if there be such a doubt that the court can on hear make  any decree whatsoever the one way or the other it be reason to continue the  injunction till the hear ambler d that accord to the construction of this will  the plaintiff may come into this court and restrain the defendant from present  doctor chapman and oblige they to present the plaintiff in order as they stand  as to the saint there be no ground for it it be the first time I ever hear it  say that on the mere bring a bill let the fate of it be what it will a  injunction must be continue to the hear it be compare to the case of a quare  hinder at law where the party be entitle to a ne to send to but there be a  wide difference quare hinder be of right and a ne to send to which be  consequential be so too but that be not the case of a injunction out of this  court for that be discretionary and grant upon the circumstance of the case  there be no such thing as a injunction until hear be of course indeed there be  some provisional injunction of course as where there be a delay by the  defendant in not put in his answer but on the answer come in the court will  judge whether the injunction shall be continue or not there can be a strong  instance that such injunction be not of course than the case of waste after  answer come in and affidavit read for in that instance affidavit may be read  the court will accord to their discretion continue the injunction till hear or  not and yet the plaintiff may go on with the cause and final have a decree to  stay waste see Strathmore v bow bro c c S c Cox dick Norway v row Ves peacock  v peacock Ves Lawson v Morgan price as to d question there be a precede clause  in the will which speak the intention of the testator still strong than that  on which the question arise by that ambler er p he give certain legacy and to  such other person as his executor shall think fit apiece for mourning if this  trust have not be execute corrupt by the executor the court will not interpose  it never do in personal trust Q whether this be a case of that kind and I be  of opinion it be he will be almost a indecency in the court to order  presentation to be make of the several person name in the will in the order  they stand objection that doctor chapman be not entitle to be present at all  but it appear he be former chaplain to his grace and be within the description  of the will ambler objection that by make doctor chapman a executor and  trustee the archbishop intend he shall not present himself and it be say that  by reason of the death of doctor Andrews the defendant chapman can not be  present but the trust be give to they as executor and on the death of one it  survive the will do not direct that the presentation shall be of person in any  particular order the word be regard he have and even those word be think by  the testator to be too strict and he have add accord to their discretion what  ought to be the view in dispose of these benefice that the person be most fit  for serve the church it may be that one of these person be most proper for a  parochial cure another for a dignity another for the mastership of a hospital  and shall it be say that the trustee be bind to present the person that stand  first name though the most unfit person for the particular benefice vacant be  it proper for a court of equity to determine on these circumstance it be a  mere personal trust and discretion it may also happen that some of these  person become unfit and incapable of be promote by their own fault and  misbehaviour be the trustee to overlook this it may be a proper object of  their discretion and yet not such a cause as the bishop can object on a  presentation but if they stand equal cteris pair yet the trustee ought to  consider the quantity of preferment each have not at all event to pass over he  that have more and present he that have less but to exercise a discretion the  largeness of family may have weight there can be a strong case of intention  that personal discretion shall be exercise if the trustee act corrupt and  simoniacally or for their own benefit this court will interpose indeed the  present disposition be for the benefit of one of they but he be clear a object  of the testator intention as to the case of Warburton v Warburton cite out of  vern there be a rule prescribe by the testator for the exercise of the  discretion of the trustee videlicet accord to their need and necessity ambler  it be make a doubt whether in case of the death of doctor Paul the defendant  chapman will not be incapable of any of these options for he can not present  himself and after the death of the incumbent he can assign the trust it be say  in answer that he may offer himself but in watson complete incumbent a very  well write book the reason why be can present himself be say to be because it  will not create a plenarty and so Davis report I have no doubt of it never be  clear in my opinion as to the possibility suggest at the bar of the option in  this case be lose if the bishop shall die or be translate before this affair  be determine I will give no opinion to bind myself but be apprehensive it will  be lose see Gibs cod burn ecclesiastical law my reason be these options be  make effectual by deed of grant from the bishop he can grant for no long than  he be incumbent on the bishopric the executor or administrator of the  archbishop can present after the death of the bishop though the vacancy happen  in his lifetime but the presentation fall to the crown during the vacancy of  the see suppose a bishop have the advowson of a live within the diocese of  another bishop in case he have the presentation and present to it and before  the institution die after his death no institution can be upon that  presentation but it fall to the crown so if a bishop have right of collation  in his own diocese and die before collation which be equal to institution upon  a presentation it go to the crown if so will the bishop grant these  presentation to other person put the crown in a worse situation the case of  fruit fall with respect to a bishop be not like to fruit fall in the time of  tenant for life in the former case nothing go to the executor or administrator  of the bishop here be no colour of equity discharge the injunction lib Reg b  foe the injunction be to restrain the bishop of Chichester and his substitute  or agent from send out any instrument or mandate ambler er p or do any act for  the institution c of the defendant chapman until answer or further order see  Pense v Thuisey mad French v Davidson mad where the discretion of a trustee be  to be exercise on matter of opinion and judgement the court will not interfere  but where that discretion be to be exercise on matter of fact the court will  refer it to the master walker v walker mad brown v Higgs Ves after the death  of dr Paul another of the options the precentorship of Chichester become  vacant to which dr chapman present a Mr venner nephew to the archbishop dr  Richardson one of the archbishop soninlaw thereupon file his bill in chancery  charge that dr chapman have agree with venner that he shall exchange the  precentorship with he for some other preferment of less value and pray a  injunction Lord Henley on the cause come on say he have no doubt to say that  the court will not have suffer dr chapman to have abuse his trust by take any  thing to himself and further that if there be sufficient proof that the  defendant chapman have make a bargain with Mr venner for present he to his  option he will set aside such presentation with indignation his lordship  however do not think there be sufficient evidence of agreement between dr  chapman and venner and therefore dismiss the bill on appeal to the house of  lord march the decree be reverse and a order make that dr chapman shall  present dr Richardson see burn ecclesiastical law bro p c Edit Toml