Rendall v Blair
| Jurisdiction | England & Wales |
| Date | 1889 |
| Court | Court of Appeal |
Charity - Administration - Charity School - Managers - Dismissal of Schoolmaster - Injunction - Leave of Charity Commissioners before commencing Action - 4 & 5 Vict. c. 38, s. 17 [Revised Ed. Statutes, vol. viii., p. 924] -
The master of a charity school founded under 4 & 5 Vict. c. 38, brought an action in the Chancery Division against the managers of the school for an injunction to restrain them from dismissing him from his office, and from appointing any other person to such office, and from ejecting him from the school-house. The managers had purported to dismiss the Plaintiff under the discretionary power conferred upon them under sect. 17 of the Act; and the question raised by the action was whether the managers had been properly appointed. The Plaintiff had not obtained, under sect. 17 of the Charitable Trusts Act, 1853, the leave of the Charity Commissioners to bring the action.
Held, by Bowen and Fry, L.JJ., dissentiente Cotton, L.J. (reversing the decision of Kay, J.), that although the action might incidentally involve the consideration of the deed of trust of the charity, it was not such action as required the consent of the Charity Commissioners.
And held, by the whole Court of Appeal, that, even if the consent of the Charity Commissioners were necessary, it was not necessary to obtain it before the commencement of the action, and that it would not be right to dismiss the action without giving the Plaintiff the opportunity of ascertaining whether the Commissioners would give their consent.
THE Plaintiff, a certificated teacher, alleged by his statement of claim that he was appointed head master of the National School at Allerton Bywater, Yorkshire, in 1882, and entered into possession of the school-house by virtue of such appointment. The school was a charity school, and was founded under a deed of 1867, executed pursuant to 4 & 5 Vict. c. 38 — an Act for affording further facilities for the conveyance and endowment of sites for schools — and to the explanatory statute of 7 & 8 Vict. c. 37, a piece of land being conveyed to the use of the Archdeacon of Craven and his successors upon trust to permit the premises to be used for a school as therein mentioned, and as a residence for the teacher. And the deed contained the following provision: “It is hereby declared that the selection, appointment, and dismissal of the school-teachers shall be in all respects under the control and management of the incumbent and his curate, and of four other persons to be nominated annually by the incumbent.”
On the 18th of September, 1888, the Defendants, the Vicar of Allerton Bywater and four other persons, acting as the managers of the school, sent the Plaintiff a notice that three months from that date his services as teacher in the school would not be required.
The Plaintiff alleged that, in consequence of certain invalid appointments, some of the Defendants were not managers of the school at the date of the notice of dismissal, and had no power or authority to remove him from his office; also that, if they were managers, they had dismissed him improperly. Accordingly, on the 12th of December, 1888, he issued the writ in this action, claiming an injunction to restrain the Defendants, or any of them, from removing or dismissing him from his office of schoolmaster, and from electing or appointing any other person to the said office, and from ejecting him from the school-house or premises occupied by him in virtue of his said office.
The action was commenced without the leave of the Charity Commissioners having been previously obtained by certificate under sect. 17 of the Charitable Trusts Act, 1853. By their defence the Defendants alleged that their position as managers was recognised by the Plaintiff before his dismissal, and that he was dismissed for valid and sufficient reasons, and in the bonâ fide exercise of their discretion under sect. 17 of the statute 4 & 5 Vict. c. 38. They also raised the objection to the Plaintiff's right to sue that he had not first obtained a certificate from the Charity Commissioners authorizing him to bring his action; and they counterclaimed that the Plaintiff might be ordered to repay to them all sums properly expended by them in consequence of his refusal to give up possession of the school-house and premises, and all sums received by him as school-pence and otherwise from the children attending the school, which the Defendants said the Plaintiff had improperly retained.
The action now coming on for trial, the Defendants raised the preliminary objection that leave to bring the action had not been obtained from the Charity Commissioners.
It appeared that the Defendants had since the commencement of the action taken proceedings before the justices of the peace, under sect. 18 of 4 & 5 Vict. c. 38, to obtain possession of the school-house, but that the justices adjourned the application until the present action had been disposed of.
The action was heard before Mr. Justice Kay on the 11th of February, 1890.
Renshaw, Q.C., and Decimus Sturges, for the Defendants:—
This being a suit in Chancery relating to a charity and the property thereof, the Plaintiff should, before commencing it, have obtained the leave of the Charity Commissioners to do so under sect. 17 of the Charitable Trusts Act, 1853F3.
This is not a mere action to prevent us from excluding the Plaintiff from his office and house, in which case it might be argued that, being in the nature of an action at law, it did not come within the section: Benthall v. Earl of KilmoreyF4; Holme v. GuyF5. This suit really relates to the administration of the charity, and is therefore clearly within the section. Under sect. 17 of 4 & 5 Vict. c. 38, the Plaintiff, on being appointed schoolmaster, only “held his office at the discretion of the trustees,” and that discretion we say we have exercised.
In Glen v. GreggF6 your Lordship allowed a similar objection to the present. In that case the question was whether a building registered as a place of meeting for religious worship was exempted from sect. 17 of the Charitable Trusts Act, 1853, by sect. 62, and your Lordship felt bound by the decision of Lord Chelmsford in Attorney-General v. Sidney Sussex CollegeF7 to hold that the building was not exempted from sect. 17; but the Court of Appeal held that the latter case should not be treated as a deliberate decision of Lord Chelmsford, and they accordingly held that the building was exempted from sect. 17.
[KAY, J., referred to Brittain v. Overton,F8.]
Cutler, Q.C., and H. Lynn, for the Plaintiff:—
This case, which is the converse of Holme v. GuyF9, is as much a common law action as that action was, though in form it is an action in Chancery. It is an action which, before the
KAY, J.:—
I think this objection involves a very important question. The object of the 17th section of the Charitable Trusts Act, 1853, was, it is plain, to prevent the property of a charity being wasted by suits in Chancery or proceedings under Sir Samuel Romilly's Act, by petition, or other like proceedings to obtain “any relief, order, or direction concerning or relating to any charity, or the estate, funds, property, or income thereof;” and in order to interpose an effectual bar to proceedings of that kind, it provided that, before any such suit, petition, or other proceeding “shall be commenced, presented, or taken, by any person whomsoever, there shall be transmitted” to the Board of the Charity Commissioners notice in writing, and the Board, “if upon consideration of the circumstances they so think fit, may, by an...
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