brown case peter fillip appellant sir John walter and other respondent that  February Mews dig three I S find a lectureship with a salary of pound per and  charge upon his land for the lecturer so long as he shall attend the charge of  diligent preach there once every Sunday if he shall not otherwise by necessity  be hinder and when the lectureship shall be void by death removal departure or  otherwise the trustee be to appoint a new lecturer a be appoint to this  lectureship but some time afterward become great indebt he withdraw himself  and continue abroad for several year hold that a s extravagance be not such  necessity as can be plead in his excuse and that his so withdraw himself be  such a departure as justify the trustee in appoint a new lecturer viner vol p  can Eq can ab can sir John Walter bart former Lord chief baron of the  exchequer by indenture date the that of September d Charles I convey to  trustee and their heir certain brown er p land in the county of Oxford to the  use of himself for life and then upon trust that out of the issue and profit  thereof the trustee shall yearly for ever pay to the parson of the church of  Sarsden for the time be the sum of pound by half yearly payment at Michaelmas  and ladyday and therein take notice that he have or short will erect a lecture  for preach the word of God in the parish church of Churchill there follow this  further trust that the trustee shall likewise pay yearly out of the issue and  profit of the premise the like sum of pound to the lecturer of Churchill so  long as he shall continue lecturer there and attend the charge of diligent  preach there once every Sunday if he shall not otherwise by necessity be  hinder and it be by the say indenture declare that when the place of lecturer  shall be void by death removal or other departure the trustee shall from time  to time choose a new lecturer out of the best scholar of the university of  Oxford to be appoint out of their mere choice without any suit or mean to be  make to they for any man and by the same indenture the advowson of the parish  church of Sarsden be convey to the same trustee and their heir upon trust to  present the lecturer of Churchill for the time be to the say church of Sarsden  by several mesne assignment this trustestate become vest in the respondent sir  John Walter Robert Walter and sir Robert Burdet in the appellant apply to the  respondent sir John to get he appoint to this lectureship and accord by  deedpoll date the that of march sir John together with sir Robert Burdet and  Robert Walter appoint the appellant to be lecturer this deed be draw and  prepare by sir John counsel in London and send down into the country to be  execute but several word be interline in the engrossment thereof and  particular the word during the term of his natural life brown the appellant  soon afterward enter upon his lectureship and for his better accommodation sir  John permit he to live at his house at Sarsden and to have his diet there and  also the use of a outbuilding adjoin to the house usual call the steward room  but the appellant in a short time by his imprudent conduct become great in  debt insomuch that he be oblige to withdraw himself and go abroad where he  stay for several year during which time sir John get the lecture supply at  easy rate and apply the surplus profit towards payment of the appellant debt  but the appellant not return to his duty in any reasonable time sir John and  the other trustee on the that of march appoint one Mr John griffin to be  lecturer and from that time pay he the S per and and upon his death the  respondent Sturgis be duly appoint lecturer in June the appellant think proper  to exhibit his bill in chancery against the respondent pray a account of the  pound per and from the time of his go away and to be let into the possession  of the lectureship and be pay the grow salary for his life and also to have  the say room at sir John house settle upon he for life the cause be at issue  be hear on the that and that of may before the Lord chancellor Parker who have  take time to consider be please on the that of the same month to decree that  the plaintiff ought to have a account of the pound per and till such time as  Mr griffin be appoint lecturer but recommend it to the plaintiff consideration  whether he will insist upon go into such account or submit to have his bill  dismiss without cost when the plaintiff insist upon take the account his  lordship decree that it shall be refer to the master to inquire what be due to  the plaintiff for the say pound per and from the time of his be appoint  lecturer to the time that the say Mr griffin be appoint lecturer by the deed  of the that of march but in take such account the master be to make the  defendant sir John Walter a allowance of what he have pay to the say griffin  and all such other person as during the time aforesaid supply the say cure in  the plaintiff absence and also of what the say defendant have pay for or  towards the just debt of the plaintiff and all other just allowance and what  upon the say account shall appear to be come due from the say defendant sir  John for the say pound per and after such allowance shall be make as aforesaid  it be decree that the say defendant shall pay the same brown er p to the  plaintiff at such time and place as the say master shall direct but as to the  room or to the plaintiff be restore to the say lecture his lordship see no  cause to give he any relief and therefore order that the bill as to all other  matter save the account so direct as aforesaid shall stand dismiss with cost  and as to that account his lordship reserve the consideration of cost until  after the master shall have make his report brown from this decree the  plaintiff appeal contend W Hawkins I Jenyns that the lecture be duly supply  either by himself in person or by a sufficient curate even at and at all time  before his deprivation and that such supply by curate be never in the least  object to or complain of until after such deprivation nor be any notice or  intimation give to the appellant that a personal supply of the lecture be  necessary that there be nothing in the nature of the thing which indispensable  require that the duty of such lecture shall be perform in person if therefore  there be any such necessity it must depend on some express clause in the  original foundation of the lecture that the clause insist on for this purpose  be only take from the recital of a deed no way appear to be actual pursuant to  the original settlement pretend to be recite nor prove to be take from it and  therefore ought to be of no force in deprive the appellant of his freehold  that even this clause be far from be express that the lecturer shall be  deprivable in a arbitrary manner without any previous notice or intimation of  the nature of his tenure or any summons to answer the charge make against he  and that so large and unbounded a power ought never to be imply where it be  not express that the respondent sir John stand by and consent to the appellant  expend near pound on a house common repute the lecturer house be at least a  encouragement to the appellant to proceed in his expense and ought to amount  to a imply promise of suffer he to remain in it during his continuance in the  lecture shall it be object that by a clause in the recital of the original  settlement the lecture be to be give to one of the best scholar in the  university of Oxford and which imply that he ought always to do his duty in  person it may be answer that grant there be such a clause the intent of it can  not but be well satisfy by a curate qualify in such manner as the lecturer  himself ought to be and which be clear the case at present for the trustee  have so good a opinion of the curate and his ability as to nominate he in the  room of the appellant and shall it be further object that the respondent the  trustee have do nothing more in deprive the appellant and put in another  lecturer than what the court of chancery will have oblige they to do on a bill  bring for that purpose it be answer that suppose the court may have make such  a decree upon a bill with proper party yet it be apprehend they will never  have make such a decree on a bill to which the appellant be no party and  therefore much less can the respondent legal proceed to a deprivation of the  appellant without give or at least endeavour to give he notice to appear and  answer for himself the other side it be insist r Raymond t Lutwyche that by  the express word and manifest intention of the pious founder of this charity  it be provide that the annual sum of pound shall be pay to the lecturer so  long as he shall attend the charge of diligent preach brown there if he shall  not otherwise by necessity be hinder and it be presume that a lecturer  extravagance which occasion he to withdraw himself for fear of his creditor be  not such a necessity as can be plead in his excuse beside it appear by the  deed of trust that the lecturer of Churchill be to be present to the live of  Sarsden which be no doubt intend as a further encouragement to he to perform  his duty personal that by the word of the deed whenever the place of lecturer  shall be void by death removal or other departure of the lecturer the trustee  be to choose a new one out of the best scholar of the university of Oxford so  that a departure of the lecturer be manifest intend to entitle the trustee to  make a new choice and it be also plain that a personal service be mean  otherwise the choice out of the best scholar in the university will have be  vain that the trustee by appoint another person in the year after more than  five year absence have full execute their trust and the person now regular  appoint ought not to be remove in favour of the appellant who have so gross  neglect his duty and as to the word during his natural life in the appointment  though they be not in the draught brown er p settle by counsel yet suppose  they to have be insert prior to the execution they can not give the appellant  any great title than what be allow of by the deed of trust as to the matter of  cost the decree be conceive to be very just for occasion a expense to the  respondent upon a demand so strange and surprise and after a desertion of so  many year and as to the demand of the two room which by the bill be call a  ruinate tenement there sure can be no colour for it and it be the appellant  own obstinacy that he do not accept the offer which be make and recommend to  he that the bill shall be dismiss without cost and therefore it be hope that  the decree will be affirm and the appeal dismiss with cost accord after hear  counsel on this appeal it be order and adjudge that the same shall be dismiss  and the decree therein complain of affirm jour vol p