case bishop of ROUCHESTER and other appellant attorneygeneral and other  respondent that may Mews dig three in the case of a charity the most  expeditious and least expensive method shall be adopt and where no material  fact be dispute nor any point of law arise but what a court of equity may  determine upon such court ought to determine final without direct a issue  decree of Lord chancellor Parker reverse the note of this case in viner only  mention that the above point be urgedIt do not appear to have be attend to in  the decision viner vol p can Eq can ab can can sir Edward Hannes knight by his  will date the that of may direct his executor doctor John waugh and Joseph  Shale to lie out pound in erect a lodging for the forty king scholar in  Westminster school in such place as the dean and chapter shall direct and in  contrive whereof he desire that sir Christopher wren and doctor aldrich then  dean of Christchurch oxon shall be consult after the testator death and before  this legacy be pay a suit be institute in the court of chancery by temperance  Hannes his daughter and only child against the executor for a account of his  estate and by the decree make on the hear of that cause before Lord chancellor  Harcourt on the that of July it be inter alian order that the pound shall be  lie out in building lodging for the say scholar in such place as the say dean  and chapter shall direct who be to consult sir Christopher wren in contrive  thereof but when it come to be consider how much a entire new building will  cost the legacy be find to be great insufficient and sir Christopher wren have  advice to lie out the legacy in repair the old dormitory for the intend  purpose all think of a new building be lie aside and on the that of April a  order be make in the above cause that the legacy shall be apply in repair the  old room in consequence whereof lodging be take for the scholar and they be  actual remove till the propose repair shall be complete there be however soon  afterward a prospect of raise benefaction sufficient for a new building the  former design be brown resume and at a chapter hold for this purpose on the  that of January a act be make that a new dormitory shall be erect in the  collegeorchard accord to a plan that day produce and accord the dean and  chapter on renew a lease to one Allen of a message and ground next adjoin to  that part of their garden where the new building be intend to be make do in  two several chapter hold on the that and that of February make provision for  such building in their say garden by express stipulate in such lease that the  dean and chapter may erect the same notwithstanding any obstruction thereby to  be give to the light of Mr allen house and may use a part of his ground for  that purpose mark in a plan annex to his lease in a yellow shadow and for  these privilege they give he a consideration in his fine in further  prosecution of this design the dean and chapter apply for and obtain his  majesty bounty of pound and a present of pound from his royal highness the  prince of Wales beside several other benefaction which will have enable they  to complete the intend building and therefore at a chapter hold brown er p on  the that of December they renew their former act of the that of January and at  another chapter hold on the d of march both those act be confirm but the  respondent doctor friend have in the mean time purchase Mr allen lease and  apprehend that it may bet lessen in value by the intend building he prevail  upon the other respondent to join with he in a opposition to this design  accord on the that of may a information be exhibit in the court of chancery by  the attorneygeneral at the relation of the respondent against the appellant  and doctor Thomas Spratt another prebendary since decease allege that the  relator doctor friend house purchase of Allen will by the new building be  render of little or no value that the garden be assign to the use of the  prebendary together with a dwellinghouse for each of which they be respective  seize in their demesne as of freehold distinct in right and as the corpse of  such prebend where unto the say garden and the use thereof be in common to  their respective house and make part of the corpse of their respective prebend  and which the dean alone or together with any part or all of the say  prebendary have not nor can have any right power or authority to dispose of  alter apply or convert either in the whole or any part to any other use  whatsoever and that the building therein will deprive they of great part  thereof that the several chapter act for building in the say garden be obtain  by surprise and not bind that the relator doctor friend be seize of a  courtyard lead from the school to the garden for life not subject to any other  control or use which will in part be take away that the house of the brown  relator dent only and Farrar will be deprive of their light air and prospect  that the light of the schoolroom and musaeum will be take away and that the  garden be not so convenient a place as where the old lodging stand nor will  the soil bear a foundation and therefore they pray a perpetual injunction to  stay such building in the garden the defendant have answer and the cause be at  issue several witness be examine on both side who prove that in the lease to  Allen a power be reserve to erect such building in the garden and a allowance  make he in his fine for the same and that doctor friend approve of the  intention of building there till after he purchase that lease that the site of  the collegiate church of Westminster and the several land and tenement thereto  belong in which be include the prebendal house the garden school and old  lodgingroom be by letter patent under the great seal of England date may d  Elizabeth grant by her say majesty to the dean and chapter and their successor  and be still vest in they and have be constant dispose of and manage by and  accord to resolution and act make in chapter and that all the chapter which  have be hold relative to the building a new dormitory be regular assemble and  all the act duly make and enter accord to the usage and constitution of the  say church on various occasion and at very distant time so that there be no  colour for pretend any surprise in that respect that the garden after the  completion of such intend building will be more useful and ornamental than it  be before and no part of the ground of it will be take away but that on which  the pillar in the piazzawalks under the new intend dormitory be to stand and a  small part at each end where the second master lodging and office be intend to  be build that the little yard claim by doctor friend be the undoubted property  of the dean and chapter and be by their permission use as the schoolgarden and  so style in their act but be never the garden of the chief or either of the  schoolmaster that one part of it be express reserve to the dean and chapter by  a clause in Mr Farrars lease and the other part of it be not intend to be  build upon but only to have a arch eight or nine foot broad and about nine  foot high from the surface of the ground turn from wall to wall over a narrow  part thereof be a small gravel walk of which no use be make that none of the  relator house will suffer any real prejudice much less such as will entitle  they to obstruct the building nor will the school or musaeum be damnified that  the garden be upon all account the most proper place for the building and will  sufficient bear the foundation of it and that there be much great objection  brown er p in point of property expense and convenience to the erect a new  building in the place where the old lodging stand particular that the king  scholar must lie in private house for two brown or three year while the  chamber be rebuilding which will ruin the discipline of the place on the that  of June this cause come on to be hear before the Lord chancellor Parker when  his lordship be please to order that the party shall proceed to a trial at law  at the bar of the court of king bench upon the follow issue whether the  relator the prebendary have such a right or interest in the garden as that the  dean and chapter can not without their consent lawful build thereon accord to  the plan propose whether the relator doctor friend have such a right and  interest in the little garden as that the dean and chapter can not lawful  build thereon without his consent accord to the say plan and whether if the  say building shall go on it will be such a nuisance to the relator dent and  Farrar as that they may lawful stop the same from this order the defendant  appeal contend t Lutwyche c Talbot that there be not the least proof in the  cause that the dean or any of the prebendary have any distinct or separate  interest in the garden and therefore it be conceive no question can arise at  law whether the dean and chapter have a right to dispose of any ground belong  to they in common to public use and benefit which be the appellant sole aim  whereas the respondent appear to act from view of private interest and  convenience only that the little garden or courtyard claim by doctor friend as  his freehold be and plain appear to be the undoubted freehold of the dean and  chapter though by their permission use as the schoolgarden part thereof be  express reserve to the dean and chapter by a clause in the respondent Farrars  lease and if building a small arch over part of it shall in fact be any  inconvenience yet it be so minute that the schoolmaster ought not on such a  trifle consideration to obstruct a charity intend for the good of the scholar  that it be manifest from the proof in the cause that the house of the  respondent dent and Farrar will not be damnified by the intend building much  less in any such degree as to entitle either of they to obstruct it that no  clear proof be make of any one material point allege by the respondent in  their bill nor any doubt remain touch any one material fact insist on by the  appellant no point of law can arise in the case but what may and ought to have  be determine by the court of chancery and especial in the case of a charity  where the most expeditious and least expensive method ought to be adopt and  therefore it be conceive that the court ought final to have determine the  place where the building shall be erect that it be plain the intention of sir  Edward Hannes the testator that a new building shall be erect and it be not  pretend by the respondent that there be any place so proper for the erection  of such building as either the common garden or the site of the old chamber  but it appear by the proof that brown neither the contribution already receive  or those just expect can be proper lie out in rebuilding the old chamber in  the place where it stand or if they can yet the rebuilding it there will be  liable to all the objection which with any colour of reason be urge against  building it in the garden and will moreover be attend with more and much great  inconvenience whereas there be satisfactory proof that the common garden be  the most convenient place for the scholar with respect to their health  learning and virtue and therefore it be hope that the decree direct the say  issue will be reverse and the information dismiss with cost on the other side  it be argue p York S Cowper that if the respondent have only show a reasonable  foundation and probable evidence of a right which they have long enjoy and  claim as their freehold the court of chancery ought not to deprive they of it  by a decree without give they a opportunity of have the same try and determine  by the course of the commonlaw that as to the first issue it appear by the  statute of the college that the garden be appoint by the founder for a common  garden and though the whole site of the college be grant to the dean and  chapter by charter yet that charter like all other college charter be restrain  by the statute accord to a clause in the charter that the college shall be  order secundum in ranks maxim et to cause to stand ii well successor nest per  our brown er p in a certain indenture in descendants fiend specificand et  declarand that the prebendary have accord enjoy this garden or orchard ever  since the foundation of the college and be always think to have a right in it  as appear by several act of chapter and particular by one in the year wherein  be this clause that none but the prebendary live and reside about the church  shall have a key to the orchard that the orchard be restore to its former  privacy the prebendary may enjoy the benefit thereof as of right they ought to  do that this right be convey to each prebendary by his patent under the great  seal which entitle he to the house and all other accommodation of his  immediate predecessor in these word to go away a b office of canon sive  Prbendam modus vacant c habend tenant predict canonical sive Prbend prcefat a  b durante vita One cum omnibus one profit due measure house lodging cterisque  law whoever speech canonical sive Prcebendce to any place whatever modus  pertinent to such a degree plene freely et integre ac in tam opportunity modus  et form prout c d or some all prcedecessor c that this garden be a great  accommodation to house that have no tolerable outlet or garden belong to they  which be the case of all the old prebendal house and if the majority of any  chapter have a right to take away a part of this garden they may take away the  whole and even the house of any prebendary as it all depend on the same reason  that as to the second issue the respondent doctor friend have a grant under  the seal of the dean and chapter in which they for themselves and successor  brown constitute he chief master of the school to hold the say office and all  profit lodging and all other accommodation thereunto belong in as large and  ample manner as doctor knipe or any other of his predecessor hold or enjoy the  same for and during his natural life and by virtue of which grant doctor  friend take possession of this little garden in the same manner as he take  possession of his house or lodging and have enjoy it ever since and it be full  prove in the cause that this little garden call the schoolgarden have be  possess and enjoy by doctor Busby doctor knipe and doctor friend successive  and use by they as their own particular garden of right exclusive of all other  and that they alone successive have the key enjoy the produce and pay the  gardener for look after it and as to that part of the garden which the  appellant allege be reserve to the dean and chapter by a clause in Mr Farrars  lease it be true there be a little piece of ground reserve in the lease and  also in a former lease of the same house to doctor forester but it be also  true that after this lease to doctor forester be grant this piece of ground be  by act of chapter that December add to the schoolgarden and order to be always  thereafter annex and continue to it that doctor Busby and doctor knipe accord  enjoy the garden with this addition so that it be so far from be by that  reservation the right of the dean and chapter that it belong to doctor friend  as his right and freehold by virtue of his constitution as the rest of the  garden do and therefore he insist that the appellant can not build thereon nor  turn a arch over the other part of the garden accord to their plan without his  consent as to the three issue it be prove that the intend building in the  common orchard or garden will stand within less than five yard of doctor dent  prebendal house and in right angle with it and will consequent obscure his  light and intercept his air and that the staircase through which the scholar  be every day very frequent to pass be next to his best room at the same  distance and will therefore be a perpetual annoyance to he beside that while  the new dormitory be building which may be several year he will not be able to  live in his house that the second master lodging part of the intend building  will stand within ten yard front the window of Mr Farrars best room and  overlook they and within five yard of his side window and will therefore very  much obscure his light and total intercept the prospect and air of the  commongarden which by his lease he ought to enjoy and for which he have pay a  considerable fine as to the pretence of the appellant that the respondent do  not make the least objection to the building in the commongarden till the  respondent doctor friend purchase Mr allen lease and that the minute damage  which he imagine he may sustain in such lease be the first occasion of this  suit and that he prevail with the other respondent to let their name be make  use of in the present brown information it be answer that the respondent the  prebendary be well know to have be constant and uniform against any brown er p  building in the commongarden both in the time of the late and of the present  dean and that ever since the year when this project be first mention there  general have be a great number of prebendary against it than for it so that  the respondent be not prevail upon by doctor friend but voluntary and hearty  enter upon a defence of their own right that the reason of doctor friend  oppose a building in the commongarden do not as suggest by the appeal proceed  from any interest he have in the lease grant to Mr Allen but from a full  persuasion that such building will be attend with many and great disadvantage  to the school and scholar who good he believe himself as much concern for and  as capable to judge of as any of the appellant be and that the situation of  the old dormitory be much more convenient for that purpose as he have declare  long before he have any think of the say lease it be therefore a surmise  without foundation that the minute damage which doctor friend may sustain in  that lease be the first occasion of this suit he not have think of any suit  till he be apply to by some of the respondent the prebendary to join with they  in defend their several right and oppose a design so general prejudicial and  inconvenient to preserve which right and to prevent several grievance to  themselves and other the respondent humble insist on a trial at law accord to  the decree and hope the house will not deprive they of any benefit which they  may have by the law of be protect in their just right and property but after  hear counsel on this appeal it be order and adjudge that the decree therein  complain of shall be reverse and it be declare that the collegegarden be a  more proper place for building a dormitory than the place where the old  dormitory then stand and that a building shall be carry on in the say garden  accord to the plan propose so soon as convenient may be do as little damage to  the say garden in erect thereof as possible and that proper direction shall be  give from time to time in order thereto by the court of chancery and it be  further order that so much of the information or bill exhibit by his majesty  attorneygeneral in the say court at the relation of the respondent as pray a  perpetual injunction to stay the building a dormitory in the say collegegarden  shall stand dismiss jour vol p