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that there should be three Schoolmasters, called the Head Schoolmaster, the Second Schoolmaster, and the Third Schoolmaster; and when any of the three rooms of the said Schoolmasters should be vacant, the other Schoolmaster or Schoolmasters should forth with give notice to the Bailiffs of the town, which Bailiffs should have the nomination and appointment of the said Schoolmasters, with the advice of the Bishop of Litchfield and Coventry, for the time being, according to the tenor, true meaning and effect of King Edward VI.'s patent nevertheless to the intent, that such Schoolmasters might be, from time to time elected of such as should be best able to supply those functions or rooms, and of such as had been, or should be scholars in the said school, if any such there should be; it was ordained, that the Bailiffs of the said town should, from time to time within twenty days next after such notice to them given, give advertisement and knowledge of such avoidance, to the Master and Fellows of St. John's College; with request to them to elect and send to the said Bailiffs, one able, meet and apt man for that purpose, with the testimony of his conversation, by letters under their seal of office, to be by them elected for ever, under the several qualifications, and in manner and form following; viz. of such as were, or should be born within the town of Salop, being the legitimate son of a Burgess there, and having been a scholar in the said free school, if any such there should be; and in default thereof, then of such as were, or should be born within the liberties and franchises of the said town, or in the abbey Forgate, adjoining to the said town, being the legitimate son of a Burgess there, and having been a scholar in the said school, if any such should be; and in default thereof, then of some sufficient man, born in the county [404] of Salop, and brought up in the said school and in default thereof, then of some sufficient man born in any other county.

By the eighth ordinance it was ordained, that the Schoolmaster so to be appointed, at his coming from the college, should first repair to the Bishop of Litchfield and Coventry, to be by him allowed and sworn, according to the statutes of the realm; and then to bring with him the said Bishop's testimonial, under his hand and seal, and then to be allowed of by the Bailiffs, if they should so think worthy of him; and if the Bailiffs should mislike of such person, upon cause reasonable, then they were forthwith to certify such cause of their mislike to the Master and Fellows of the said college; and thereupon they were to make a new election in form aforesaid, of another Schoolmaster or Schoolmasters to supply the room so void, and him to commend and send to the Bailiffs as aforesaid.

In July 1723, the appellants nominated Hugh Owen, clerk, to be Head Master of the said school, upon the resignation of Mr. Richard Lloyd. And in Michaelmas term following, an information was filed in the Court of Exchequer, by the Attorney-General, at the relation of the college, against the appellants and the said Mr. Owen, setting forth, inter alia, the several matters before mentioned; and that upon a vacancy of Head Master of the school in June 1723, the appellants, without any advertisement or notice given to the respondents, or a testimonial from the Bishop, unduly placed Mr. Owen in the said school, who was not a Master of Arts, or of any standing in either of the universities, or in any respect qualified to be Head Master, according to the said seventh and eighth ordinances; and therefore prayed, that the appellants might discover the premises, and set forth all the ordinances, and how the Schoolmasters had, from time to time, been chosen, and whether they had not been always recommended by the college; and that they might discover all deeds, grants, and other entries and memorandums, relating to the elections of Schoolmasters by the said college; and that the Schoolmasters might be elected, from time to time, pursuant to the ordinances, and that the said ordinances, or such of them as appeared reasonable for governing and ordering the affairs of the school, might be established by the decree of the Court.

To this information the appellants put in their answer under their common seal, and thereby confessed the several grants and the said indenture tripartite, with the ordinances thereto annexed; but insisted, that by the charter of King Edward VI. they had the sole power of nominating the Head and Second Schoolmasters of the said Free Grammar School, exclusive of the Bishop of Litchfield and Coventry, and the relators; and they admitted, that they did refuse to give advertisement to the college, to send a fit person to succeed Mr. Lloyd, as Head Schoolmaster.

On the 16th of May 1720, the cause was heard before the Lord Chief Baron Gilbert,