of this Act, post: see Re Shaftoe's Charity, 3 App. Cas. at p. 876, cited in (a) to that section. n. (b) Now the Charity Commissioners: see note (b) to sect. 9 of this Act, ante. Sect. 11 (a)-(d). (c) "Entitled" in this section means legally entitled: Re Sutton Coldfield "Entitled." Grammar School, 7 App. Cas. 91; Re Free Grammar School, &c., at Hemsworth, 12 App. Cas. 444. "A person is not entitled simply because he has enjoyed, by the permission or the bounty of another, some benefit either for a longer or shorter period": Re Sutton Coldfield Grammar School, 7 App. Cas. at pp. 94, 95, per Jessel, M. R. Where a scheme provided for the maintenance of a grammar school at Hemsworth, open to all comers on payment of substantial fees, it was held that that did not make the inhabitants of Hemsworth "entitled" to have the school maintained there, so as to render improper a provision in a new scheme for the removal of the site: Re Free Grammar School, &c., at Hemsworth, supra. Where an existing scheme provided for (inter alia) elementary schools where children of poor persons were to be clothed and educated, it was held that persons of the class of life in question were "entitled" to the benefit of the schools: Re Sutton Coldfield Grammar School, supra. "Due (d) In Re Sutton Coldfield Grammar School, supra, the proposed new scheme provided for the application to the elementary schools to the benefits regard." of which it was held that certain classes of persons were << entitled," of a larger amount of the income of the charity than they had been entitled to under the previous scheme, though less than had in fact been expended upon them, and it was held that " due regard" had been paid to the educational interests of the classes of persons in question. In Re Hodgson's School, 3 App. Cas. 857, it was directed by the deed of foundation that (1) all persons of the name of Hodgson who might think fit to attend (such persons being also allowed to remain beyond the age of twenty-one); (2) all children of poor persons within the parish of Aikton not having real estate worth 201. per annum; and (3) all children of poor persons within two other parishes not having real estate worth 127. per annum, should be educated at the school without charge, and the benefits of the foundation were not open to any other persons. The scheme proposed paid no regard to the educational interests of the classes of persons above mentioned, except by giving some of them a certain preference in competing for scholarships. It was held that it did not pay due regard to the educational interests of such classes of persons, and it was accordingly remitted to the commissioners. With regard to what in that case would have been "due regard," the Court said (at p. 871), " (their Lordships) do not adopt the view that any new privilege, preference, or exclusive advantage need be given, by any scheme under these Acts, to a class originally favoured, when the commissioners think it right to abolish the original privilege or advantage. In the present case, it appears to them, that if children named Hodgson, who can conveniently attend the school as day scholars, and children from the three parishes originally favoured, are recognized as entitled to be educated, under reasonable regulations, in this school, no preference or advantage need be conferred upon them beyond this, that as the school is to be limited to one hundred Sect. 11 (d). Schemes to extend benefit to girls. Saving of interest of master, governing body, &c. (a). children, it may probably be right to give them priority of admission, cæteris paribus, if the number of duly qualified applicants for admission should at any time exceed the number of vacancies for the time being in the school. As to age and as to examination (if the governors should think it right to submit candidates for admission to a competitive or any other kind of preliminary examination), their Lordships see no reason why they (the Hodgsons included) should not be placed on exactly the same footing with other children, not of the favoured classes; who may, if found better qualified in these respects, be admitted in preference to them. And their Lordships think that due regard may well be paid to the educational interests of the Hodgsons, without allowing them to remain in the school beyond the age which may be limited as to other scholars." Where the scheme of the Charity Commissioners increased the amount of tuition fees previously payable by a certain class of boys, and added the condition that the trustees should be satisfied that the parents of the boys required aid, it was held that it did not fail in due regard to their educational interests: Ross v. Charity Commissioners, 7 App. Cas. 463. Any substantial privilege adapted to the altered constitution of the school, in lieu of the privileges abolished, would be sufficient to show that "due regard" had been paid to privileges and educational advantages previously existing Re Free Grammar School, &c., at Hemsworth, 12 App. Cas. at p. 451. In that case the old scheme provided that a grammar school should be maintained in a particular parish, and that six boys should be elected "from poor men's children, being husbandmen or men of occupations," in six specified parishes, to be educated free of cost, and that out of these six boys one scholar should be elected with a certain emolument. The proposed new scheme continued the school with another school at a distance, and provided for the election, from boys who had for not less than three years been scholars in any of the public elementary schools in the six parishes, of six scholars to be entitled to free education and 107. a-year. It was held that due regard had been paid to the privileges of the poor inhabitants of the six parishes. 12. In framing schemes under this Act, provision shall be made so far as conveniently may be for extending to girls the benefits of endowments. 13. It shall be the duty of the Commissioners (b) to foundationer, provide in any scheme for saving or making due compensation for the following vested interests (c), namely, (1.) The interest of any boy or girl who was at the time of the passing of this Act on the foundation of any endowed school (d): (2.) The tenure by any person of any exhibition (e) dealt with by any such scheme which was held by him at the time of the passing of this Act (f): (3.) Such interest as any teacher or officer in any en- Sect. 13. dowed school (g) appointed to his office before the passing of the Endowed Schools Act, 31 & 32 Vict. 1868 (h), may have: (4.) Such interest as any person may have in any pen sion or compensation allowance to which he was (5.) Such interest as any member of the governing (a) If the provisions of this section are not observed, the governing body of the endowment to which the scheme relates, or any person or body corporate directly affected, may appeal by petition to her Majesty in Council: sect. 39, sub-s. (2), of this Act, post. (b) Now the Charity Commissioners: see note (b) to sect. 9 of this Act, ante. c. 32. interest. (c) When a vested interest is continued and not taken away by a proposed Continuance scheme, the case is one for saving of rights, and not for compensation. Such of vested an interest cannot be partially taken away and partially compensated for: see Re Alleyn's College, Dulwich, 1 App. Cas. at p. 81. (d) This provision has, of course, been long since exhausted: see Re Free Grammar School, &c., at Hemsworth, 12 App. Cas. at (e) Defined by sect. 7 of this Act, ante. p. 452. (f) 2nd August, 1869. (g) Defined by sect. 6 of this Act, ante. (h) 31 & 32 Vict. c. 32, passed 25th June, 1868: see ante, p. 456. Teacher or In Re Alleyn's College, Dulwich, 1 App. Cas. 68, the office of master of officer appointed Alleyn's College of God's Gift at Dulwich was an office of which both the before 25th value and the duties were defined by statute. The statute provided for his June, 1868. dismissal from office by a certain majority at a meeting constituted and convened in a particular manner of the governors of the college. No such meeting had ever been convened, and no such majority had ever had existence. Sect. 13 (h), (i). Not to authorize schemes for interfering with modern endowments, cathedral schools, &c. By a proposed scheme the emoluments which the master was to receive were diminished considerably below those to which he was entitled under the Act. It was held, on appeal, that the master had a vested interest in the office and the emoluments thereof, and those interests not being saved by the scheme, it was remitted to the commissioners. Lord Selborne said (at p. 76), "It would be very difficult for their Lordships, having to look to substance and not to form or technicality in such a case, to accede to the argument that any teacher or officer of a school who had an interest, the value and nature of which was defined by Act of Parliament, and who had not been deprived of that interest by any lawful authority, would not be entitled primâ facie under that clause (sect. 13, sub-s. (3)), to have his interest saved or compensated." Cf. also cases cited in note (d) to sect. 11 of this Act, ante. (i) Defined by sect. 5 of this Act, ante. 14. Nothing in this Act shall authorize the making of any scheme interfering― (1.) with any endowment (a), or part of an endowment, (as the case may be,) originally given to charitable uses, or to such uses as are referred to in this Act, less than fifty years before the commencement of this Act (b), unless the governing body (c) of such endowment assent to the scheme (d): (2.) with the constitution of the governing body of any school wholly or partly maintained out of the endowment of any cathedral or collegiate church, or forming part of the foundation of any cathedral or collegiate church, unless the dean and chapter of such church assent to the scheme (e): (3.) with the constitution of the governing body of any school, which governing body is subject to the jurisdiction of the governing body of the people called Quakers, or of the congregation of United Brethren called Moravians, unless the governing body of such school assent to the scheme: (4.) with the constitution of the governing body of any school or with any exhibition (other than one restricted to any schools, or school or district (ƒ) ), forming part of the foundation of any college in Oxford or Cambridge, unless the col- Sect. 14. lege assent to the scheme (g). (a) Defined by sect. 4 of this Act, ante. (b) 2nd August, 1869. (c) Defined by sect. 7 of this Act, ante. (d) Endowments originally given for charitable uses more than fifty years before the Act, but appropriated to educational purposes by a scheme and order of the Court of Chancery made within that period, are not within this sub-section Ross v. Charity Commissioners, 7 App. Cas. 463. A doubt has been suggested whether an endowment originally given to charitable uses since the date of this Act is within this sub-section. By sect. 25 of this Act, post, where an endowment originally given to charitable uses less than fifty years before the commencement of the Act is so mixed up with an old endowment as not to be conveniently separable, the whole is to be deemed an endowment originally given to charitable uses more than fifty years before the Act. And where they are not so mixed up, provision is made for their apportionment: sect. 26 of this Act. (e) By sect. 27 of this Act, post, schemes may be framed, with the consent Cathedral of the Ecclesiastical Commissioners, for making increased provision for schools. cathedral schools out of any estates of the Church vested in the Ecclesias tical Commissioners. Such schools are excepted from the provisions of this Act with regard to religion sect. 19 of this Act, post. Cathedral schools are also excepted from sect. 20, which authorizes a transfer of visitatorial powers to her Majesty to be exercised through the Charity Commissioners; and by sect. 8, sub-s. (7), of this Act, ante, schools, during the six months preceding 1st January, 1869, used solely for the education of choristers are excepted from the Act. Cathedral schools are subject to the Charitable Trusts Acts: Charit. Trusts Act, 1853, s. 62, ante, p. 523. (f) "Wales" is a district within this clause: Re Meyricke Fund, L. R. 7 University Ch. 500. Wherever there is a restriction the power of the commissioners is let in, whether the restriction is to a school or a district (ibid.); in that case, it was held that an endowment, of which the principal and fellows of Jesus College Cambridge were the trustees, applicable for exhibitions for persons from certain counties in North Wales, was within the jurisdiction of the commissioners. (g) See further, with regard to exhibitions at colleges of universities, sect. 38 of this Act, post. exhibitions. religious in day 15. In every scheme (except as hereafter men- As to tioned) (b) relating to any endowed school (c) or educa- education tional endowment (d) the Commissioners (e) shall provide schools (a). that the parent or guardian of, or person liable to maintain or having the actual custody of, any scholar attending such school as a day scholar, may claim, by notice (ƒ) in writing addressed to the principal teacher of such T. RR |