APPENDIX III.

ATTORNEY-GENERAL . MOISES («).

Chanc. Div.-Jessel, M. R.

(17 May, 1879.)

The

An ancient charitable corporation was regulated by a scheme contained in an Act of Parliament, which provided that the directions of the Court might, whenever needed, be obtained by application in a certain information. Under the Act the charity was partly educational and partly noneducational, but less than one-half was applicable to education. corporation refused to assent to a scheme being framed under the Endowed Schools Acts appointing new trustees and altering the mode of dealing with the estates, and it subsequently presented a petition to the Court asking that alterations might be made in the existing scheme.

Held, that the jurisdiction of the Court was not excluded by the Endowed Schools Acts; that the corporation was the governing body; that there was no power to frame a scheme under sect. 24, sub-s. (3) of the Endowed Schools Act, 1869, appointing new trustees of the non-educational part of the endowment, where the governing body refused to assent; that sect. 6 of the Endowed Schools Act, 1874, consequently did not apply; and that the Court would not refuse to exercise its jurisdiction, because, if the corporation had assented, a scheme might have been made under the Endowed Schools Acts.

THIS was a petition presented in an old information of Att.-Gen. v. Moises commenced in 1832.

The Master and Brethren of the Hospital of St. Mary the Virgin, in the borough of Newcastle-on-Tyne, were an ancient charitable corporation, the original object of which was "the support of the poor in free alms."

The corporation was endowed with landed property, which had largely increased in value, and there was a considerable surplus not required for the purposes of the original foundation. In order to provide for the disposition of the increased revenue, an Act of Parliament (9 & 10 Vict. c. 42) was passed in 1846, by which a new scheme for dealing with the property was established. The substance of this scheme was that the surplus income should be applied in the establishment of certain schools.

The 28th clause of the scheme provided that the Court of Chancery should "have power from time to time to make fresh rules and orders for the management of the charity estates, and the appropriation of the income thereof, and for the general regulation of the hospital and the master and brethren thereof, and the chapel and almshouses belonging to the same, and the schools which may be maintained or established out of the income thereof, and from time to time to repeal

(a) Extracted from the files of the Charity Commissioners.

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or vary any of the present or future rules or orders, and to make others in lieu thereof."

The 47th section of the Act directed that the charity should be regulated according to that scheme, or by such amended rules and regulations as should be thereafter approved of by the Court of Chancery.

Sect. 52 provided that the master of the hospital should manage, let, and set the charity estates, and receive the income thereof, and cause proper accounts to be kept.

Sect. 57 enacted that in all cases in which the master and brethren were respectively authorised to do any act, and so forth, and in all other cases when the direction of the Court should be necessary, such direction should be obtained on motion or petition in the above-mentioned information of Att.-Gen. v. Moises. And by the 58th section it was provided that all applications which might be made under the provisions of the Act to the Court of Chancery should be made in the suit of Att.-Gen. v. Moises, and in the matter of the Act, and should be made on due notice to the Attorney-General, who should be at liberty to attend the same.

The present petition was presented by the master and brethren in pursuance of the Act for the purpose of obtaining the directions of the Court with regard to the application of certain funds in Court belonging to the charity, representing the purchase-money of a portion of the charity estate purchased by the Corporation of Newcastle, and for obtaining also various directions with regard to the regulation of the charity.

The petition prayed-(1) that further directions might be given for the application of the funds in Court, and of the surplus income of the charity; (2) that inquiries should be made whether the existing scheme should be amended; (3) that trustees should be appointed jointly with the master for the management of the charity estates; and (4) that provision should be made for the erection of a board-room, offices, and residence for the use of the master, for the transaction of the business of the hospital, and for the custody of its muniments and papers.

The questions raised by the case appear from the judgment.

Jessel, M. R.-I cannot help thinking that a great deal of the discussion I have heard to-day has had more relation to the costs of the petition, about which I have not heard anything in form just now, than what is proper to be done. The first point to be decided is, whether I have jurisdiction to do what is asked. Now I must first of all consider the facts, which are now plain. If any other formal evidence is required of them, it should be put in. I have not examined the affidavits, but I assume the statement of counsel to be sufficiently proved. There is really no dispute as to the facts. Having considered what the facts are, I shall then consider the application of the various Acts of Parliament to those facts. [His Lordship then stated the facts, and the provisions of the Act above mentioned, and proceeded :— Now, this petition is presented by the master and brethren, and it asks for directions pursuant to the Act. It is by petition under the Act; and notice has been given to the Attorney-General. It is, therefore, exactly right in every respect, unless either the Act has been repealed, or some enactment has been passed taking away the powers of the Court under the provisions of the Act. It is quite clear that under that Act of Parliament the Court has power to give new directions as to the management, setting, and letting of the estate, and also

power to give directions as to the vesting of the legal estate, and for that purpose to appoint new trustees, or give any other directions which the Court may think right to give.

Now, the master says this:-"The duties imposed on me by the Act of Parliament are very onerous, the estates are increasing in value; they are becoming available for building purposes; and I desire that the management of these estates shall be vested in a body of trustees, of whom I shall be one, to relieve me to a great extent both from trouble and responsibility."

Assuming there is nothing else in the subsequent legislation, that clearly is the proper course to take. The usual course in modern times in the Court of Chancery, or the Chancery Division, is to put the management of charity estates into a body of trustees, who are gentlemen from the neighbourhood. That is the usual course, and it has been considered and found in practice to be the best course, and the best way of managing the estates. That being so, it is clearly the proper application to make, and one which should be acceded to, unless there is some reason to the contrary.

Now it is said, first of all, that the jurisdiction conferred on the Court by the Act of Parliament in question, has been taken away by subsequent Acts. Secondly, it is said that even if the jurisdiction is not taken away, it is undesirable, having regard to the subsequent legislation, to exercise it.

First of all I must consider what the position of this endowment is. It is clear from what I have said, without going into the details of the scheme, that it is what is commonly called a mixed endowment. There is the old foundation, which is non-educational, with provision for a master and brethren, and there is the endowment out of certain portions of the rents of certain portions of the property, especially the schoolhouse, which is for educational purposes; and to that extent it is an educational endowment.

That being so, we must consider what the rights of the Charity Commissioners, who have succeeded to the rights and powers of the Endowed Schools Commissioners, are under the Acts of Parliament I am going to mention. Sect. 4 of the Endowed Schools Act, 1869, defines endowment" in the most general language. It is, "any property whatever." The 7th section defines what a governing body is. It includes, among other things (omitting immaterial words), any body corporate who have the right of holding any endowment. The endowment in the present case consists of land, which is vested in the master and brethren, an ancient corporation, who have the power to hold it under the Act of Parliament, and to apply the rents, partly in repairs, partly in certain payments to the master and brethren, and partly in certain other payments to the Corporation of Newcastle, for the purposes of the school; there are also some consols representing the proceeds of sale of land. Clearly, to my mind, the corporation of the master and brethren is the governing body within the definition. The 24th section of the Act of 1869 says this, "Where part of the endowment is an educational endowment within the meaning of this Act, and part of it is applicable or applied to other charitable uses, the scheme shall be in conformity with the following provisions, except so far as the governing body of such endowment assent to a scheme departing therefrom." In this case the master tells me, through his counsel, and I do not want an affidavit after the correspondence which has taken place (which is verified), that he will not assent to the Charity Commissioners exercising any power of dis

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placing him from the management of the charity lands, or appointing new trustees to be associated with him.

Sub-section 3 of the same 24th section, says, "If the proportion applicable to other charitable uses exceeds a half of the whole endowment the governing body of such endowment existing at the date of the scheme shall, as far as regards its non-educational purposes, remain unaltered by the scheme." Now, looking at the facts of the present case, there can be no doubt that one-half, and more than onehalf, of the endowment is not applicable to educational purposes. The total sum which the scheme allows to be applied for educational purposes at present consists of sums amounting to 4407. and 150, which are now paid, and another 150l. which may be hereafter pay able. Assuming that the second 150l. is now payable, that is, that there is a sufficient fund to pay it, which does not appear to be the case, the total is 7407. On the other hand, the salary of the master is 5007., those of the eight brethren, matron, and doorkeeper, amount to 2727. 10s. It is plain that 7727. is more than 7407. It is argued that I can take into account the value of the school buildings, which cost several thousand pounds. But the master says, "On the other hand, you must take the value of the hospital, and chapel, and so on (which are larger buildings, and no doubt of much greater value), and if you take them both into account there would not be a half applicable to educational purposes." But besides that, there is a surplus income-consols now in Court-which may be disposed of by the order which I am going to make, which will very much increase the disproportion. I suppose that by this Act I must look at the actual state of the fund, and therefore I ought to take into account that there is, at the present moment, an actual surplus over and beyond that which I have mentioned, which is not applicable at present.

That being so, it is clear to my mind that there is more than a half not applied to educational purposes. Consequently sub-sect. 3 applies. It is plain, therefore, that if there were no other Act the corporation, through its head, refusing to assent, the commissioners could not, by any scheme whatever, appoint new trustees, who would have the management of the charity estates, or alter the mode of dealing

with them.

In

My attention was then called to sect. 6 of the Endowed Schools Act, 1874, which is an Act amending the Endowed Schools Act, 1869. That section is as follows:-"The powers of making schemes under the Endowed Schools Act, as amended by this Act, shall continue in force for a period of five years from the 31st of December, 1874, and during the continuance of such powers any Court or judge shall not, with respect to any endowed school or educational endowment which can be dealt with by a scheme under this Act and the Endowed Schools Acts, or any of such Acts, make any scheme or appoint any new trustees without the consent of the Committee of Council on Education." my opinion, that does not interfere with the present case at all. It obviously means that where the Charity Commissioners have the power of doing it, the Court or judge shall not do it without the assent of the Committee of Council on Education, so that there shall not be two bodies of co-ordinate jurisdiction acting inconsistently with one another. The section refers only to an educational endowment which can be dealt with by a scheme under the Endowed Schools Acts. This part of the matter cannot be so dealt with. "Educational endowment," in this section, clearly means what I will call a pure educational endowment. Now, I am not going to interfere with

respect to the endowment of the school or the educational endowment. I am not going to appoint new trustees of them. If I appoint new trustees at all it is only of the old charity estates. The educational endowment consists merely of certain sums out of the charity estates and the school house. There is no other educational endowment.

It appears to me, therefore, that that section does not apply to the case of a mixed endowment, where by reason of the dissent of the governing body the Charity Commissioners cannot make a scheme affecting the property. Consequently, in my opinion, the jurisdiction

remains.

I have not adverted to two other points which passed through my mind during the discussion. The first is, that where there is a special Act of Parliament for the government of a particular school, I am by no means clear that that special jurisdiction is taken away by these general words. The second is, that where there is a plain jurisdiction vested in any Court, it will require equally plain words to take it away. These are both considerations which, perhaps, would lead me to the same conclusion to which I have been lead irrespective of them. The next question is, whether I ought to exercise the jurisdiction? The way it has been put on the part of the Attorney-General is this: it is said, "the only reason the Charity Commissioners cannot exercise their jurisdiction is, that the master will not consent to their exercising it; is he to come here and ask the Chancery Division to do the same thing which can be done by the Charity Commissioners with his consent"? The fallacy of that proposition is, that it is not the same thing, but a different thing. The master says, "I will not agree to the Charity Commissioners exercising jurisdiction, because I cannot trust them; I have had a quarrel with them; they may appoint somebody else, leaving me out in the cold altogether; they may appoint trustees, as to whose appointment I shall have no voice whatever; I prefer that the jurisdiction shall be exercised by the Chancery Division, which has no animus or bias in the matter either way; and I think the trustees would be better appointed, and better directions given as to the management thereof, by the Chancery Division than by the Charity Commissioners." It is not for me to say that that is absurd, or that the master is so wholly wrong in his preference, that it is improper to exercise the jurisdiction vested in the Court, there being a proper case for its exercise, because he has not chosen to submit to another jurisdiction as to which the legislature have given him an option. The very meaning of giving a governing body an option is, that the governing body may exercise it either way. The governing body having exercised it adversely to the jurisdiction of the Charity Commissioners, it is not, in my opinion, right for the Court, which then has exclusive jurisdiction, to decline to exercise it, if the case is a proper one, merely because the governing body refuses its assent to the other jurisdiction. It seems to me, therefore, that I ought to exercise it, and I intend to exercise it, by referring it to Chambers to appoint trustees for the management of the charity property, and to inquire whether it would be proper that the legal estate should be vested in the official trustee, or in what other persons or person.

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