case the attorney general v doctor Stephens SC Eq can Abr pl a have be elect  under dr ratcliffe donation receive the salary for five year and then instead  of travel beyond sea for five more cis the will require upon ill health resign  and the trustee accept the resignation and put another in his room this be a  dispensation of the condition if they have say when a offer to surrender we  will not accept of your resignation but you must comply with the term or  refund it will have be otherwise the defendant have be regular elect under  doctor ratcliffe donation and have receive the salary for five year and then  instead of travel beyond sea pursuant to the direction of the will upon a  suggestion of ill health resign and the trustee accept the resignation above  five year have incur since the resignation of the defendant and the acceptance  thereof by the trustee Lord chancellor the attorney general 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 that there  be three consideration in this case saint what be the intention of doctor  Ratcliff by his will dly whether doctor Stephens have comply with it rdly if  not whether it give the relator a right to come into this court to make the  defendant refund what he have receive doctor Ratcliff by his will give several  manor upon trust inter alian to pay pound yearly to two person of university  atkins college 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 whatever but as to the construction of doctor 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 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  atkins er p 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 doctor Stephens have comply with the  intention of the donor now it can be say that doctor Stephens have comply with  doctor 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 non compos 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 that 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 that 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 atkins use  which be express thus by the Scotch law causan data send non support with the  agreement be to pay pound per and for ten year if during that time he travel  five year will the not travel 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 Stephens 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 have accept of this  resignation without insist upon doctor Stephen go on and it S 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 quite different but instead of that they have accept of the  resignation and actual put another in his room therefore I think as doctor  Stephens have take the burden of this upon he and 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 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 saint consideration whether the travel fellow must be member of the  college dly whether they have a power to let the chamber which they hold in  the right of their fellowship 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 S 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 oh f the ease for doctor Stephens  have comply with that part of it atkins er p and as to the power of let their  chamber I do not think atkins that doctor Ratcliff have lie his fellow under  great restriction than those of the 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 doctor Stephens have have a very large benefaction already  from doctor ratcliffe donation and university college