The Queen on the Prosecution of Wray v the Governors of the Darlington Free Grammar School

JurisdictionEngland & Wales
Judgment Date27 November 1844
Date27 November 1844
CourtCourt of the Queen's Bench

English Reports Citation: 115 E.R. 257

QUEEN'S BENCH

The Queen on the Prosecution of Wray against the Governors of the Darlington Free Grammar School

S. C. 14 L. J. Q. B. 67; 9 Jur. 21. applied, In re Teather and Pour Law Commissioners 1850, 19. J. M. C. 70. Referred to, Wides v. Russell, 1866, L. R. 1 C. P. 744. Questioned, Dean v. Bennett, 1870, L. R. 6 Ch. 490. discussed and applied, Hayman v. Governors of Rugby School, L. R. 18 Eq. 72. Referred to, Abergavenny v. Bishop of Llandaff, 1888, 20 Q. B. D. Adopted, R. v. Bayly, [1898] 2 Ir. R. 347.

[682] in the exchequer chamber. (error from the queen's bench.) ^ the queen on the prosecution of wray against the governors of the darlington free grammar school. Wednesday, November 27tb, 1844. Queen Elizabeth, by charter, founded and endowed a grammar school at D., and (a)1 The judgment below was judgment of ouster, " and that the said William Smith, the relator above mentioned, do recover against the said T. Rowley the sum of 1621. 6s. 6d. for his costs by him laid out and expended in carrying on his said suit in this behalf, according to the form of the statute in such case made and provided. " (a)2 May 9th. Before Tindal C.J., Coltmati, Maule, and Cresswell Js., Pollock C.B,, Parke, Alderson, and Rolfe Bs. (b) And see stat. 8 & 9 W. 3, c. 11, s. 2, in favour of defendants below. (a)8 He referred to Eegina v. Humphery (judgment in the Exchequer Chamber, June 4th, 1839) reported, but not as to costs, 10 A. & E. 335, where the party succeeding in error recovered costs in the Exchequer Chamber by judgment of that Court. And in Hex v. Johnson (judgment in the Exchequer Chamber, June 8th, 1836), reported, but not as to costs, 5 A. & E. 488, the Court of Exchequer Chamber (as appears by the record) awarded that the defendant should recover 5431. 12s. 9d. for hia costs in the Queen's Bench, and 831. 17s. for his costs of the writ of error. K. B. xliv.- 9 258 THE QUEEN V. THE GOVERNORS OF DARLINGTON SCHOOL 6 Q. B. 683. incorporated certain persons and their successors as governors, and granted to them, for ever, full power and authority from time to time of electing, nominating and appointing a master and usher of the said school so often as to them and their successors, or the major part of them, occasion them moving thereto, should appear, and of removing the same master or usher from the said school, according to their sound discretion, and of placing or appointing other or others, more fit in their stead or steads. Held by the Court of (Queen's Bench, and by the Court of Exchequer Chamber, affirming their judgment, that, by the terms of the charter, the governors might in their discretion remove a master without summons or hearing, and although no charge against him had been exhibited to them. The governors were empowered by the charter to make bylaws, and, in 1748, they enacted a bylaw, requiring certain qualifications in the future masters, and ordaining (for the encouragement of well qualified persons to accept the office) that no master should thereafter be displaced, removed or removeable from the office unless some sufficient cause of complaint should be exhibited in writing against such master, and signed by the governors or their successors, and the same cause of complaint be first allowed of and declared by them to be a sufficient cause. Held by both Courts that the governors had no right thus to limit the discretion given by the charter, and that the bylaw was void. To a mandamus requiring the governors to restore a master whom they had dismissed, and alleging that he had always behaved himself well, &c., the governors made return, stating the charter, and averring that the prosecutor did not always behave himself well, &c., and that they received complaints from parents of the scholars, namely from A. B. and C. D., of the prosecutor's misconduct and inattention, and particularly that, &c. (specifying complaints made by A. B. of particular acts of misconduct): that the governors gave the prosecutor notice of the complaints, and called upon him to answer, which (after having reasonable time and opportunity) he failed to do; and that the governors, being satisfied of the truth of the charges, in the exercise of their best discretion, and deeming the prosecutor an unfit person to be master, discharged him. Prosecutor took several traverses, denying that he had committed the acts charged, or that he had reasonable time, &c. to answer. He also pleaded the above bylaw, and that no sufficient cause of complaint, exhibited in writing, was, before his dismissal, allowed according to the aaid law. The governors joined issue on the traverses, and replied to the plea, stating acts of misconduct, notice thereof to the governors, complaint in writing exhibited by them setting forth the causes, which were sufficient for dismissal, delivery of the written complaint to prosecutor, omission by him to answer though he had reasonable time and opportunity, allowance of the charges by the governors, and dismissal thereon. Rejoinder, denying that a complaint in writing, stating sufficient cause, was delivered to prosecutor, or allowed by the governors. Issue thereon. A verdict being found for the Crown on all the issues, the Court of Queen's Bench gave judgment for the defendants non obstante verdicto. Held by the Court of Exchequer Chamber that under stat. 9 Ann. c. 20. s. 2 (and consequently under stat. 1 W. 4, c. 21, s. 3), judgment non obstante veredicto may be given for the party making return to a mandamus, and that it waa rightly given here. Quaere, by the Court of Exchequer Chamber, whether, in other cases than that of mandamus, judgment non obstante veredicto may be given for a defendant as well as for a plaintiff. Semble, per Parke B., that it may. [S. C. 14 L. J. Q. B. 67 ; 9 Jur. 21. Applied, In re Teather and Poor Law Commissioners, 1850, 19 L. J. M. C. 70. Referred to, Wildes v. Eussell, 1866, L. R. 1 C. P. 744. Questioned, Dean v. Bennett, 1870, L. R. 6 Ch. 490. Discussed and applied, Hayman v. Governors of Rugby School, 1874, L. R. 18 Eq. 72. Referred to, Abergavenny v. Bishop of Llandaff, 1888, 20 Q. B. D. 473. Adopted, R, v. Bayly, [1898] 2 Ir. R. 347.] Mandamus, directed to the Governors of the Free Grammar School of Queen Elizabeth within the town or village of Darlington, in the County Pala-[683]-tine of Durham. The writ recited, in the usual form, that George Wray, clerk, " was duly qualified for, and duly elected, nominated, appointed, licensed, allowed and admitted to and into the place and office of upper master or pedagogue of the said grammar tQ.S.lSA. THE QUEEN V. THE GOVERNORS OF DARLINGTON SCHOOL 259 school, created, founded and established under and by virtue of certain letters patent" of Queen Elizabeth, "for the education and instruction of youth, in which said place and office he the said G. Wray always behaved and governed himself well and according to the statutes and ordinances made for the management, ordering, direction and government of the upper master or pedagogue for the time being at such school, to wit at," &o. " Yet that you, the said Governors of the said Free Grammar School, without any reasonable cause, and contrary to the said letters patent, statutes and ordinances, have unjustly removed the said G. Wray from the said place and office of upper master or pedagogue of the said school, in contempt," &c. The writ then commanded the governors immediately to restore the said George Wray to the said place, &c., or shew cause to the contrary. Beturn. That the said school was founded by letters patent of Queen Elizabeth (15th June, 5 Eliz.), by which Her Majesty granted that from thenceforth there should be a grammar school in the village of Darlington aforesaid, which should be called the Free Grammar School of Queen Elizabeth, for the education, institution and instruction of youth in grammar, to continue for ever, and the said school constantly of one master or pedagogue, and one usher or sub-pedagogue, to continue and [684] be she did set up, ordain, create, found and establish ; and, that her intention aforesaid might be better enforced and take effect, and that the lands, revenues, and other things for the support of the said school afterwards granted, assigned and appointed might the better be governed for the establishment of the said school, she did will and ordain that the four wardens of Darlington, for the time being, should be, and be called, Governors of the said Free Grammar School and of the possessions, revenues and goods of the said school; and she appointed the then wardens to be the then present governors, and incorporated them and their successors by the name of the Governors of the Free Grammar School of Queen Elizabeth within the town of Darlington in the County Palatine of Durham ; and did give and grant, to them and their successors, " That they, the same governors and their successors, and the major part of them, for the time being, might have, and for ever thereafter should have, full power and authority, from time to time, of electing, nominating and appointing a master and usher of the said free school aforesaid so often as to them and their successors, or the major part of them, occasion them moving thereto, should appear, and of removing the same master or usher, or either of them, from the said school, according to their sound discretion, and of placing or appointing other or others more fit in their stead or steads, and of performing and doing all other things which to the said free school relative to the teaching therein should be necessary and expedient." Of which letters patent (notice to Wray before his alleged misconduct). And the governors certified " That, although true it is that the within named G. Wray, after the making of the said letters [685] patent and before the coming of the within writ to them the said governors, to wit a.d. 1836, was elected," &c. "and admitted to and into the place...

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