leases, the

mines, the

management of any charity, or the estates or property Sect. 21. thereof, that any part of the charity lands or estates building, &c, may be beneficially let on building, repairing, improving, working of or other leases, or on leases for working any mine, or doing of that the digging for or raising of stone, clay, gravel, or repairs and other minerals, or the cutting of timber, would be for ments (a) ; the benefit of the charity, or that it would be for the benefit of such charity that any new road or street should be formed or laid out, or any drains or sewers made through any part of the charity estates, or that any new building should be erected, or that any existing building should be repaired, altered, rebuilt, or wholly removed, or that any other improvements or alterations in the state or condition of the lands or estates of such charity should be made, it shall be lawful for such trustees or persons to lay before the said Board a statement and proposal in relation to any of the matters aforesaid; and it shall be lawful for the said Board, if they think that the leases or acts to which the statement and proposal relate (with or without modifications or alterations) would be beneficial to the charity, to make such order under their seal for and in relation to the granting of such leases, or the doing of any other such acts as aforesaid, and any circumstances connected therewith, as they may think fit, although such leases or acts respectively shall not be authorized or permitted by the trust (b); and the said Board, by any such order, may authorize the application of any monies or funds belonging to the application of charity for any of the purposes or acts aforesaid, and, if necessary, may authorize the trustees to raise any sum of money by mortgage of all or any part of the charity estates; provided that compulsory provisions be reserved in poses." every such mortgage for the payment of the principal money borrowed by annual instalments, and for the redemption and re-conveyance of the mortgaged estates, within the period of not more than thirty years (c).

(a) With regard to leases of charity lands, see ante, pp. 265, 266, where an outline of the statutory provisions will be found. Those provisions are

and may

authorize the

the charity

funds or the

raising of money on those pur

mortgage for

Sect. 21

(a), (b), (c).

Elem. Educ.
Act, 1870.

Order authorizing lease.

Application.

Provisions as to building leases not inserted in scheme. Order authorizing repairs, &c.

Concurrence of official

trustee in mortgages.

Repeal.

Extension of powers.

Recouping

contained in sect. 26 of this Act, sects. 16, 29, 38, and 39 of the Charit. Trusts Amend. Act, 1855, and sect. 12 of the Charit. Trusts Act, 1869.

The powers of the Board are not affected by the fact that similar powers to be exerciseable only with the sanction of the Court have been given by a private Act or an order of the Court: Charit. Trusts Act, 1862, s. 1, post.

By the Elem. Educ. Act, 1870 (33 & 34 Vict. c. 75), s. 22, the provisions of the Charit. Trusts Acts, 1853 to 1869, relating to the sale, leasing, and exchange of charity lands, are extended to the sale, leasing, and exchange of land or school-houses belonging to a School Board and not required by them, the Education Department being substituted for the Charity Commissioners. (b) The order authorizing a lease is usually written upon the engrossment of the lease intended to be granted, and a copy, identified by the seal of the Board and numbered, is deposited in the office of the Charity Commissioners. The order authorizes the granting and execution within six months of the particular lease upon the engrossment of which it is written.

Forms of application for such authority will be found in App. II., Charity Commission Forms, Nos. 6, 7, post. As to the mode of application, see Charit. Trusts Act, 1869, s. 5, post. As in the case of a sale (post, p. 490), so in the case of a lease, the commissioners require to be furnished with a report of a surveyor unconnected with the proposed lessee, which should follow the lines indicated in Form No. 8 of the Charity Commission Forms, printed in App. II., post.

In Re Henry Smith's Charity, 20 Ch. D. 516, a clause in a proposed scheme as to building leases was struck out, leaving the granting of such leases to be governed by the present section.

Where an order authorizing the employment of the charity funds in repairs and improvements is required, a statement must be submitted to the Charity Commissioners of the nature of the repairs or improvements required. Plans and specifications of proposed new buildings, &c., must also be submitted ; and the commissioners further require to be informed of the sum (including incidental expenses) which will be required for carrying out the works.

The order then authorizes the works to be carried out in accordance with the plans at the specified cost. And the necessary directions are given for raising the required funds by mortgage, or, where there are available funds, for appropriating them to the required objects.

Principal money raised on mortgage, together with interest and capital money of the charity employed for any of the above-mentioned purposes, is required to be recouped out of income: see note (c), infra.

In the case of a mortgage, as in the case of a sale (see post, p. 491), the official trustee of charity lands is, if the land to be mortgaged is vested in him and the mortgagee so requires, directed to concur in the mortgage. His concurrence is, however, unnecessary: see ibid.

(c) The words in italics are repealed by sect. 30 of the Charit. Trusts Amend. Act, 1855, post, which prescribes provisions for paying off mortgages by means of a sinking fund and otherwise.

By sect. 15 of the Charit. Trusts Act, 1860 (post, p. 572), the power given by this section of authorizing the application of funds belonging to or raised by mortgage of charity property is extended to other beneficial objects not inconsistent with the trusts or intentions of the foundation.

The Charity Commissioners, following the rule adopted by the Court (see

ante, pp. 265, 266), usually require any expenditure out of the capital of a charity to be recouped out of income.

Sect. 21 (c).

Where there are funds belonging to the charity standing in the name of expenditure the official trustees of charitable funds, a mode commonly adopted by the out of income. Charity Commissioners of providing for the recouping of capital expenditure Modes of out of income is to direct the official trustees to transfer a sum of governrecouping. ment stock to an "investment account," and to invest the dividends on the sum so transferred at compound interest in the purchase of the like stock to the same account until the capital sum expended has been replaced.

In other cases the commissioners direct the charity trustees to cause to be remitted, on or before a specified day in every year during a specified period, out of the income of the charity a sum of not less than a stated amount to the banking account of the official trustees of charitable funds at the Bank of England. The official trustees are directed to invest the annual sums so remitted at compound interest in government stock to the credit of a sinking fund account, until the capital sum raised has been replaced.

The last-mentioned method is commonly adopted for paying off the prin- Paying off cipal sum raised on mortgage, the charity trustees being also directed to mortgage. keep down the interest out of the income of the charity. Thus provision is made for the regular payment of interest, and for the repayment of the

principal within a limited number of years.

contain

An order authorizing a mortgage always contains a provision that the Mortgage mortgage "shall contain no power or authority for the mortgagee to sell all does not or any part of the mortgaged hereditaments, either express or by implication, power of sale. and that any such implication shall be expressly negatived."

Although a mortgagee is entitled, where a fund is authorized to be raised Formal on mortgage, to have a regular mortgage executed, yet, as a matter of mortgage practice, this is often not required, the mortgagee being satisfied with the provision for repayment made by the order of the commissioners.

often dispensed with.

authorize

remove

22. It shall be lawful for the Board (b), upon proof Board may to their satisfaction that any schoolmaster or school- trustees to mistress or other officer of any charity has been negligent officers (a). in performing his or her duties, or that he or she is unfit or incompetent to discharge them properly, either from immoral conduct, age, or any other cause whatsoever, to empower the trustees of such charity to remove such schoolmaster or mistress or other officer, and to charge the salary of his or her successors, or any other portion of the revenues of the charity, with such retiring pension or allowance, if any, in favour of the person so removed, and generally to impose such conditions as to the said Board shall appear proper: Provided always, that where there shall be any special visitor of the charity, the consent of such visitor, in writing under his hand, shall be necessary in order to such removal (c).

(a) See further, as to the removal of schoolmasters and schoolmistresses,

Sect. 22 (a), (b), (c).

Board may sanction

of claims on behalf of charity (a).

&c., sects. 2, 13, and 14 of the Charit. Trusts Act, 1860, post, and note (i) to sect. 2.

(b) Defined to mean the Charity Commissioners sitting as a board: sect. 66 of this Act, post.

(c) See ante, p. 85.

23. If in any case it appear to the trustees or persons compromise acting in the administration of any charity that any claim or demand or cause of suit against any person in relation to such charity may, with advantage to the charity, or should, under the special circumstances of the case, be compromised or adjusted without taking or without continuing any proceedings at law or in equity, such trustees or persons may, or the person against whom such claim, demand, or cause or suit exists or is alleged to exist, may, with the consent of the trustees or persons acting in the administration of such charity, submit to the said Board a statement and proposal for such compromise or adjustment (b); and if it appear to the said Board after such inquiry in relation thereto by one of their inspectors (c), as they may deem requisite, or otherwise, that such proposal, either with or without any modification, is fit and proper, and for the benefit of the charity, it shall be lawful for the said Board to make such order for and in relation to such compromise or adjustment as they may think fit; and upon the due performance of the terms and conditions of such compromise or adjustment as aforesaid, such agreement shall be a final bar to all actions, suits, claims, and demands by or on behalf of the charity concerned therein, in respect to the cause of action, suit, or matter in respect to which such compromise or adjustment shall have been made.

Extension of powers.

Order for partition.

(a) By sect. 31 of the Charit. Trusts Amend. Act, 1855, post, the power of the Board is extended to authorize the compromise of claims, &c., against charities or the trustees thereof.

An order for partition may sometimes be made under these sections: see note (a) to sect. 32 of the Charit. Trusts Amend. Act, 1855, post.

The powers of this section are specially adapted to orders for the redemption of rent-charges, and as a matter of practice such orders are almost invariably carried out under this section, and not under sect. 25 of this Act. The form of order in such a case is stated in note (a) to that section, post.

(b) As to the mode of application, see Charit. Trusts Act, 1869, s. 5, post.

(c) Now "assistant commissioners:" Charit. Trusts Act, 1887, s. 2, sub-s. (2), post.

Sect. 23 (c).

the Board under any cumstances, the may authorize the exchange of

special cir

sale or

charity

24. Upon application to the said Board by trustees or persons acting in the administration of charity, representing to the said Board that, under special circumstances of any land belonging to charity, a sale or exchange of such land can be effected lands (a). on such terms as to increase the income of the charity, or would otherwise be advantageous to the charity, such Board may, if they think fit, inquire into such circumstances, and if after inquiry they are satisfied that the proposed sale or exchange will be advantageous to the charity, may authorize the sale or exchange, and give such directions in relation thereto, and for securing the i due investment (b) of the money arising from any such sale, or by way of equality of exchange for the benefit of the charity, as they may think fit.

(a) With regard to sales of charity lands generally, see ante, pp. 250 et seq.; and with regard to exchanges, see ante, pp. 267 et seq.

Sales and exchanges authorized by the Board are as valid as if they had Validity. been directed by the express terms of the trust (see s. 26 of this Act), and notwithstanding disabling Acts: Charit. Trusts Amend. Act, 1855, s. 38,

post.

By s. 29 of the Charit. Trusts Amend. Act, 1855, post, restrictions are Restriction on placed on sales by charity trustees. And by s. 12 of the Charit. Trusts sales by Act, 1869, where trustees have power to determine on a sale or exchange, a majority may act.

trustees.

Power of

majority to act.

Provision is made for payments for equality of exchanges and for payment of expenses by sects. 32 and 34 respectively of the Charit. Trusts Amend. Payments for Act, 1855, post.

The powers of the Charity Commissioners under this section are not impaired by the fact that similar powers, to be exerciseable only with the sanction of the Court, have been given by a private Act or an order of the Court: Charit. Trusts Act, 1862, s. 1, post.

equality of exchange, &c. Private Act, or decree giving similar powers exerciseable The power of authorizing a sale given by this section is not affected by the only with Allotments Extension Act, 1882: Parish of Sutton to Church, 26 Ch. D. 173. sanction of By the Elem. Educ. Act, 1870 (33 & 34 Vict. c. 75), s. 22, the provisions Court. of the Charit. Trusts Acts, 1853 to 1869, which relate to the sale, leasing, Allotments and exchange of lands belonging to any charity, are extended to the sale, Act, 1882. leasing, and exchange of the whole or any part of any land or school- Elem. Educ. house belonging to a school board which may not be required by such board, Act, 1870. with the modification that the Education Department is for the purposes of the section substituted for the Charity Commissioners.

Extension