Attorney General v The Bishop of Worcester
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1851 |
| Date | 01 January 1851 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 530
HIGH COURT OF CHANCERY
S. C. 21 L. J. Ch. 25; 16 Jur. 3. See Attorney-General v. St. John's Hospital, Bath, 1865, L. R. 1 Ch. 106; Manchester School case, 1867, L. R. 2 Ch. 504; Attorney-General v. Stewart, 1872, L. R. 14 Eq. 23; In re Browne's Hospital v. Stamford, 1889, 60 L. T. 289.
[328] ATTORNEY -GENERAL V. THE BlSHOP OF WORCESTER. May 27, 29, 30, June 2, 3, Nov. 8, 1851. [S. C. 21 L. J. Cb. 25; 16 Jur. 3. See Attorney-General v. St. John's Hospital, Bath, 1865, L. E. 1 Ch. 106; Manchester School case, 1867, L. R. 2 Ch. 504; Attorney-General v. Stewart, 1872, L. K. 14 Eq. 23; In re Browne's Hospital v. Stamford, 1889, 60 L. T. 289.] If a scheme for the regulation of a charity, settled by a decree, does not operate beneficially for the charity, and the Attorney-General considers that the interests of the charity would, consistently with the foundation, usage and law, be promoted by an alteration of the scheme, it is competent to him to apply to the Court for (1) Stat. 7 & 8 Viet. c. Ixviii. (loc. and pers.) s. 128 : "That previously to every ordinary meeting the directors shall cause a scheme to be prepared, shewing the profits, if any, of the company for the period current since the immediately preceding ordinary meeting, and apportioning the same, or so much thereof as they may consider applicable to the purposes of dividend, among the shareholders, according to the shares held by them respectively, the amount paid thereon, and the periods during which the same may have been paid, and shall exhibit such scheme at such ordinary meeting; and at such meeting a dividend may be declared according to such scheme." 9 HAKE, 328. ATTORNEY-GENERAL V. BISHOP OF WORCESTER 531 such alteration; but schemes which have been settled under the directions of the Court ought not to be disturbed upon merely speculative views, or in matters of discretion or regulation, upon which Judges or Attorneys-General may differ in opinion, or except upon substantial grounds and clear evidence, not only that the scheme does not operate beneficially, but that it can, by the alteration, be made to do so consistently with the object of the foundation. A scheme, settled by decree, which might be altered upon information, may be altered upon petition under Sir S. Eomilly's Act (52 Geo. 3, c. 101), if otherwise a proper subject for such a petition. Although it has been held that a decree of the Court of Chancery confirming the decree of the Commissioners of Charitable Uses is not examinable-the same being in the nature of a bill of review-and there cannot be a bill of review upon a bill of review; such an objection does not apply to a proceeding brought to alter the regulations of a charity settled by the decree of the Commissioners and confirmed in Chancery, in a case where no bill of review is necessary. The jurisdiction of the Court as to charities under Sir Samuel Eomilly's Act, in cases arising between the trustees and the objects of the trust, may be exercised according to the discretion of the Court, where it can be applied with justice to the parties and benefit to the charity. And, semble, the Act may safely be resorted to in cases where the objects of the charity have no distinct interests, and where, therefore, the Attorney-General properly represents them all, and in eases where, though there may be distinct interests, no substantial question of principle can arise between the several objects of the charity. Where a summary jurisdiction is created by Parliament it must be deemed to be the intention of the Legislature (in the absence of any restriction) that the proceedings under it, when resorted to, shall have the same force and effect as the proceedings under the ordinary jurisdiction for which it is substituted. There is.no general rule against the admission of boarders in grammar schools; but the number of boarders admitted ought not to be such as in any manner to affect the admission of free boys, or the means of educating them to the best advantage, according to the provisions of the scheme. Although there be reason to suspect that a school was in connexion with the Church of England, in the absence of any positive evidence confining the benefit of the charity to members of the Church of England-the usage having been to admit the children of Dissenters to the benefits of the school-the question of their admissibility must be governed by usage. The Commissioners appointed under the stat. 1 & 2 Geo. 4, c. 92, and the bishop, having found that an exchange of the charity lands would be beneficial, and the same having been effected according to the statute, the Court has no power to reverse their decision; and it is immaterial that the bishop was himself one of the trustees of the charity, the bishop having no personal interest in the property. The power of the Court to make alterations as times and circumstances require, in schemes settled by its decrees for the management of charities, does not depend upon the character in which the decree has been made by the Lord Chancellor. The term " free school" is flexible in its meaning, and must be construed according to the context and usage. It has no reference to the instruction given, but to the terms on which it is given. The foundation of a school in or before the 17th century, for the instruction of children and youth in good literature and learning, goes far to shew that it was intended for instruction in the learned languages. Evidence on which the Court concluded that a school was a grammar school within the jurisdiction of the Court under Sir Eardley Wilmot's Act. The Attorney-General acts on behalf of the Crown as parens patrice, and represents all the objects of the charity who are thus, in effect, Plaintiffs through him. ò Distinction between schools endowed for the education of children and youth in a certain town, in which the inhabitants might therefore take as boarders boys resorting to the place for their education, and schools endowed for the education of boys born in the town in which the school is situated. If, on the one side, there may be evils, there are on the other great advantages 532 ATTORNEY-GENERAL V. BISHOP OF WORCESTER 9 HAKE, 329. resulting from the admixture of children of the upper and lower classes in the same school. The question is not whether a competent master of a grammar school can be provided for a given income, but by what means the services of a superior master can be secured; and there is no rule that the Court will exclude boarders in all cases where the income of the charity is sufficient for the maintenance of the master. The Court disapproves of charity informations got up by public meetings and supported by public subscriptions. An information, at the relation of G. Griffiths and others, against the trustees of Kidderminster School, and against the headmaster, under-master and a retired under-master of the school. It prayed a declaration that the whole income of the charity ought to be applied for the benefit of the school; that the free scholars ought not to be required to make any payments for their education; that, in the administration of the charity, children who, or whose parents, are members of the Church of England ought not to have an [329] advantage or privilege over children who, or whose parents, are not members of the Church of England ; and that all boys who can read and write are proper objects of the charity. The information also prayed the declaration of the Court whether the masters of the school ought, or ought not, to be allowed to take boarders; and it prayed that several orders which had been made by the Court in relation to the school might be discharged; and that it might be referred to the Master to settle a proper scheme for the general regulation and management of the charity, having regard to such declarations; and that an exchange of an estate belonging to the charity, called the Greenhill estate, for a house and estate called Woodfield, might be set aside, or that the Defendant, William Coekin (the headmaster), might be decreed to make good to the charity the damage occasioned thereto by the exchange. The earliest notice of the foundation of the Kidderminster School is contained in an inquisition taken in the 9th year of Charles 1, by virtue of a commission under the Great Seal, according to the statute 43 Eliz. c. 4. By this inquisition it was found that various parcels of land had been theretofore conveyed to the use and for and towards the maintenance of schoolmasters and a free school for the education of children and youth in Kidderminster in good literature and learning. Upon this inquisition the Commissioners made a decree, whereby, after various provisions relating to the letting and the misemployment of the rents of the land, which were described as belonging to the free school, they gave directions for the future regulation of the school, the qualification and government of the masters, and the application of the income of the charity.(l) Some [330] exceptions were taken to this decree, and were (1) The Commissioners ordered and decreed that no person or persons should be admitted, elected, chosen, allowed or approved of to be schoolmaster or schoolmasters of the free school in Kidderminster, nor have any benefit, profit, wages or stipend belonging to the said school or master or masters of the same, but such person and persons as should wholly and altogether employ him and themselves as schoolmasters of the said school, and not employ him or themselves in any manner of other profession or business which might or should hinder or in any way let or take away the continual attendance and diligence of such schoolmaster or schoolmasters upon the said school and the scholars therein; but that if any such schoolmaster or schoolmasters should in any way or at anytime neglect the said school and their duty...
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