attorneygeneral at the relation of the master c of university college Oxford  plaintiff and dr stevens dr ridley and edward harley and the other trustee of  dr ratcliffe will defendant may S c atk Eq can ab pl dr Stevens have be elect  under dr ratcliffe will a travel fellow receive the salary for five year and  instead of travel abroad for five more as the will require upon health resign  after have be absent from England only six week and the trustee accept the  resignation and put another in his room this west tempt Hardwicke er p be a  dispensation with the condition it may have be otherwise if they have refuse  to accept the resignation whether the travellingfellows must be member of a  particular college and whether they have power to let their chamber be not  object of the court be decision but ought to be determine by the visitor  doctor Ratcliff by his will date that September give all his estate in  Yorkshire to his executor upon trust to pay thereout yearly pound to two  person master of Art and enter on the physic line to be elect out of the  university of Oxford by c for the maintenance of such two person for ten year  and no long the half of which time they be to travel beyond sea for their  better improvement and he give the surplus of that estate to university  college he also give pound to his executor for building the front of  university college the master lodge and chamber for these two fellow dr  Stevens be regular elect to one of these travellingfellowships on the that  July and from that west tempt Hardwicke time bill the that July receive the  salary of pound per annum during that time dr Stevens live in a noble family  and receive a salary for his employment therein and on the that of July have  be absent from England only six week he tender his resignation in write to the  elector on a suggestion of in health which be accept by a majority of they and  another person be elect in his place the object of the information be to make  dr Stevens account to university college for what he have receive since his  election and to have the direction of the court as to the manner of hold and  repair the chamber the latter part relate to dr Ridley the other travel fellow  who admit that he have let his chamber although he be resident in England and  the question as to he be whether he have a right so to do and whether the  travellingfellows be bind to repair their chamber on the part of dr Stevens  evidence be adduce to show that he have since his election apply himself to  the study of physic that he have real intend to travel and that he be now  unable so to do from the bad state of health into which he have fall the  attorneygeneral and Mr pauncefort in support of the information contend that  the travel be a condition annex to the gift of the pound per and and have not  be perform Mr brown Mr fazakerley Mr green and Mr Murray for dr Stevens  contend that dr Stevens have be prevent from travel will health by necessity  and not from choice that the will give to the fellow the option of what period  of the ten year to begin their travel that the time not to be employ in travel  be give to enable they to go through a proper course of study which will  natural precede the travel and in which it be prove that dr Stevens be employ  he be never call upon by the elector to proceed upon his travel if he have die  the claim now set up may have be as well insist upon against his executor and  if it have prevail in this case will affect all those fellow who after the  limit time resign their fellowship instead of take order here the intention of  travel be good fide entertain west tempt Hardwicke and there be no evidence of  fraud that the acceptance of the resignation by the trustee amount to a  dispensation with the obligation to travel and this information be not file  until five year afterward the attorney general in reply admit that there may  be a reasonable excuse for not but that in this case there be not sufficient  evidence of ill health and as to the resignation contend that the elector have  only a power of nomination and no right to accept of a resignation and that  they may not have be aware of the circumstance of this case Lord chancellor  that may the attorneygeneral be certain a necessary party and the information  be proper bring in his name nothing to be sure shall be do in this court to  invalidate the design of this donation and on the other hand I must proceed in  such manner as I be warrant to do by the rule of law or equity there be three  consideration in this case west tempt Hardwicke er p first what be the  intention and true construction of dr ratcliffe will second whether that have  be comply with by the defendant dr Stevens three if not whether the  noncompliance with it have be such as to give a right to the relator to  recover back the money in a court of equity dr Ratcliff by his will give  several manor upon trust inter alian to pay pound yearly to two person who  shall be elect out of the physic line by the archbishop of Canterbury c for  their maintenance for the space of ten year in the study of physic and to  travel half the time for their better improvement and in case they shall die  or the place be vacant then the vacancy to be fill up by two other and the  whole overplus to university college I think if the defendant have forfeit the  college will certain be entitle to it let it come to they by any mean  whatsoever but as to the construction of dr ratcliffe will it be manifest the  design that they shall travel and that they shall travel five year but it be  true say there be no particular time appoint when they shall begin their  travel the word be the half of which time they shall spend in travel for their  better improvement and therefore it west tempt Hardwicke be most natural to  intend that he mean the last five year for their travel because he imagine  they will in the first part of the time be lie in a proper stock of knowledge  but then it can never be understand that he intend in all event they shall  travel for there may be accident which will utter incapacitate they for travel  and therefore he do not expect they shall refund when such accident happen but  leave it at large to be judge of by the circumstance beside this be give not  only for the expense of travel but for other view likewise for maintenance c  the next question whether dr Stevens have comply with the intention of the  donor now it can be say that dr Steven have comply with dr ratcliffe intention  but then it must be consider whether he have a reasonable excuse for not do it  and upon this there be no doubt but that natural disability will excuse such  as become noncompos sickness or other natural disability but then it have be  insist upon that the defendant have fraudulent accept of this employment in  order to put the money in his pocket without any intention ever to do the duty  of it if this have be prove I shall have no doubt but that I may decree the  defendant to refund but this be not the case for there be not one single  circumstance give in evidence to show he take it upon such a fraudulent design  instead of that there be very strong proof to the contrary even by person of  good credit in the profession that he have diligent apply himself to the study  of physic and beside that he be in a ill state of health in a waste and decay  condition which threaten a consumption and even suppose he be actual able to  travel but in his own mind do not think himself capable yet he will not be  guilty of a fraud for a imaginary as well as a real distemper will equal  incapacitate he I do not think the clause in the will can possible amount to a  condition but be mere directory that half of the time they shall travel and be  not like a executory consideration as where a pay money upon such a  consideration and it be not perform a action at law lie for a for money have  and receive to his use which be express thus by the Scotch law causan data  send non support with the agreement be to pay pound per annum for ten year if  during that time he travel five year will the not travel west tempt Hardwicke  oblige he to refund No unless the elector have suffer he to continue in this  post the whole ten year then possible the relator will have have a right to  call he to a account and may have oblige he to refund for five of the year  doctor Stevens communicate his illness first to the archbishop of Canterbury  and lodge a formal resignation with he I think the trustee be the elector and  the person who doctor Ratcliff intend shall have the whole management of this  donation they stand in his place in this respect and they have accept of this  resignation without insist upon doctor stevens go on and it be certain a  dispensation of the condition if they have say we will not accept of this  resignation but you must comply with the term or refund then the case will  have appear different but instead of that they have accept of the resignation  and actual put another in his room therefore I think as doctor Stevens have  take the burden of this upon he and west tempt Hardwicke er p as at the end of  five year the trustee accept a surrender from he and do not insist then on his  refund it will be unreasonable to require it now but even if it be a condition  yet suppose this case a patron present to a benefice and take a bind as he may  from the presentee to reside for ten year and he after five year be expire  shall resign the live for the residue of the term and the patron accept it and  present another no one will say that he have forfeit the annual income of this  live during that part of the ten year he be resident upon it for the  acceptance of the patron have dispense with the breach of the condition and no  action can be maintain on the bind therefore I shall think it too hard in the  present case to decree a account against the defendant there be two other  point first consideration whether the travellingfellows must be member of the  college second whether they have a power to let the chamber which they hold in  the right of their fellowship west tempt Hardwicke as to these matter they be  not proper the object of this court be jurisdiction but ought rather to be  determine by the visitor and the will beside be extreme incorrect in this  respect as to the be member of university college it be natural to suppose no  body will reside in the college unless they be actual member but this be out  of the case for doctor Stevens have comply with that part of it and as to the  power of let their chamber I do not think that doctor b to have lie his fellow  under great restriction than those of other college be liable to and if I be  to inquire whether a fellow of a college have a right to let his chamber I  shall make wile work and give a opportunity to half the university to bring  bill against particular person to discover whether they have not forfeit their  fellowship by thus let out their chamber decree the information to be dismiss  but without cost as against doctor Stevens who have have a very large  benefaction already from doctor ratcliffe donation and university college but  the information to be dismiss with cost as against doctor Ridley the statement  of the case be take from Lord hardwicke notebook the judgement from atkins