It is not the practice of the Court of Chancery to remove the master of a school where there has been any misunderstanding as to his duty; but when that duty is prescribed, the master must determine either to hold the situation, doing the duty, or to discharge himself (b). Neither is it the practice to remove a master who has been appointed by trustees de facto acting as such, whether the estates were rightly vested in them or not; but the ground of removing a master who has acted under an undue appointment, must be such misconduct as would be sufficient to discharge him under an appointment originally right (c).

A schoolmaster, whose election was declared to be void, was allowed the rents during the time he performed the duties, and until the appointment of another (d).

The question whether the offices of vicar and schoolmaster of a parish are incompatible will be determined by the court, and not made a subject of inquiry before the master. An information, insisting that such two offices ought not to be held by the same person, was dismissed where there was neither any manifest intention, on the part of the founder, that the two offices should not be held together, nor evidence that the performance of the duties of a vicar had occasioned a neglect of those of schoolmaster. A schoolmaster has his duties prescribed to him by the rules and regulations, and by the practice of the school. If, being vicar of the parish, he cannot observe those rules and regulations, and act according to that practice, that would be a ground for his removal from the school. But the duties of the two offices are not necessarily incompatible. If a master neglects his duty as vicar, but performs his duty as schoolmaster, the

Brougham held, that the amount of the master's salary ought to be the subject of a general regulation by the governors of a free school, and not of a special agreement; ante, pp. 586, 587.

(c) Attorney General v. Hartley, 2 Jac. & Walk. 375; Attorney General v. Dixie, 13 Ves. 535, 541; see Foley v. Wontner, 2 Jac. & Walk. 247.

(d) Attorney General v. Black,

(b) Attorney General v. Coopers' 11 Ves. 191. Company, 19 Ves. 192.

court has nothing to do with such neglect as vicar. But if it be shown, that a master has given so much personal attention to his vicarage as to neglect his school, the court will dismiss him on the ground of his neglect of duty as schoolmaster, if that be established by evidence. If, on the other hand, it appears, that, according to the intention of the founders of a school, the vicar of the parish could not hold the office of schoolmaster, the court has not to consider whether the two offices are incompatible, but its dry, simple, naked duty would be, to remove him, on the ground of such intention, which must be clearly manifested (e).

The master will not be allowed to hold such two offices where it is inconsistent with the foundation of the charity. For example, where the management of the property belonging to a grammar-school, founded by letters-patent, was, by the statutes of the founder, vested in a corporate body, consisting of the vicar, the master of the school, and the three churchwardens of the parish; and the schoolmaster was by such statutes made responsible to the vicar and churchwardens for his good conduct. The schoolmaster in possession having been subsequently collated to the vicarage of the parish, an information was filed, alleging that, under such circumstances, the union of the two offices of vicar and schoolmaster in one person was very detrimental to the interests of the school, and contrary to the intentions of the founder, and had caused the undue application of the funds arising from the charity belonging to the poor of the parish, inasmuch as the churchwardens had never attended to the examination of the accounts, nor in any manner interfered with nor controlled the master in the management thereof, and therefore there was no control over the master, and submitting that under the circumstances, the defendant ought not to be permitted to hold such two situations, and that if he refused to resign the vicarage of the parish, that then he ought to be removed from the office of schoolmaster.

A decree was made, ordering the master to elect either to

(e) Attorney General v. Hartley, 2 Jac. & Walk. 353, 375.

give up the mastership of the grammar-school, or to resign the vicarage; but such election was not to be made until after the master in chancery had made his report, whether or not the schoolmaster was exclusively entitled to the rents of any part of the estates (e).

It appears by a case already stated, that the visitors and masters of an endowed school cannot maintain an ejectment against the schoolmaster unless his interest has been determined on a previous summons (f). It seems that neglecting the scholars would be good ground of amotion (g). If the master of a free school has an estate of freehold in his office, he cannot be removed at the pleasure of the patrons of the school; but the Court of Chancery will, upon petition, restrain an ejectment brought by the patrons to evict the master from the possession of the school-house (h).

In an ejectment against a schoolmaster who has been removed by the sentence of trustees of the school for misbehaviour, it is not necessary for them to prove the grounds of the sentence, nor can the defendant disprove them. But the defendant may give in evidence the declarations of a former trustee who signed the sentence, and who is since dead, for the purpose of showing that his signature was corruptly obtained (i).

SECTION IV.

Of the Appointment and Removal of Trustees generally. THE provisions contained in various acts of parliament respecting the appointment of trustees have already been stated (k). Some cases, however which have occurred

(e) Attorney General v. Brown, 2 Aug. 1830, Reg. lib. A. 1829, fol. 2553-2559. See 17 Rep. Commissioners of Charities, 266-276. (f) Ante, pp. 365-367.

(g) Doe d. Coyle v. Cole, 6 Carr. & Payne, 359.

(h) In re the Free Grammar-School of Chipping Sodbury, 8 Law Journ. Chanc. 13.

(i) Doe d. Davy v. Haddon, 3 Dougl. 310.

(k) Ante, pp. 498-508.

respecting provisions for the appointment of trustees of charities, remain to be considered.

Proper powers for the appointment of new trustees should always be inserted in instruments establishing charities which are not incorporated, in order to supersede the necessity of an application to the Court of Chancery for that purpose. The direction for the appointment of new trustees is sometimes given to the surviving trustees, in the event of the death, refusal, or incapacity to act, or residence out of Great Britain, of any one or more of those appointed. In other cases, the new appointment is not directed to be made until the trustees are reduced by any of those events to a given number (l). In some instances, the right of choosing new trustees has not been confided to the discretion of the old trustees, but the founders of charities have required the trustees to be appointed to have particular qualifications, as residence in a parish or district, or the holding particular offices, and given the right of nomination to particular persons, or directed the appointment to be made with the consent of the lord of the manor, or the rector or vicar of the parish, or others.

By a private act, 6 Geo. IV. c. 56, relating to Waddington Hospital, the power of appointing new trustees was enlarged, because a literal compliance with the directions of the founder for the election of new trustees, had become impracticable.

A provision for the appointment of new trustees is sometimes inserted in schemes settled by the master (m).

In the Attorney General v. Floyer (n), a question arose on a devise to six trustees and their heirs, of the right of nominating a minister of a donative, and also of a rent charge, &c., for the support of a minister, with a direction, that when the trustees were reduced to the number of three, they should choose others. All the trustees but one having died, the

(1) See ante, pp. 33, 313, 507. (m) Attorney General v. Morland, Reg. lib. A. 1833, fol. 277.

(n) 2 Vern. 748. See Foley v. Wontner, 2 Jac. & Walk. 245; post,

sect. v. 3.

new trustees.

surviving trustee filled up the number, and conveyed to It was insisted that the trustees having neglected to convey to new trustees when the number was reduced to three, that the single trustee had not power to elect others, and that the court ought to appoint trustees. But it was held to be only directory to the trustees, that when reduced to three, they should fill up the number of trustees; and although they had neglected to do so, that the right was not extinguished, and that the surviving trustee had a better right than any one else, and had power to convey to the new trustees.

In another case, a question of an opposite description arose, upon a deed declaring the trusts of a dissenters' meeting-house, which had been conveyed to twenty-five persons, by which it was provided, that when, by death or otherwise the number of the said trustees should be reduced to fifteen, then the said remaining fifteen trustees, or the majority of them, or the survivors or survivor of them, should proceed to elect, &c. "so as to make up the complement of twenty-five, and to convey to the whole body so completed."

The number of trustees having been reduced to seventeen by deaths, eight new trustees were elected by the majority of the surviving trustees. Eyre, C. B., was of opinion, that, upon the whole scope of the instrument, the trustees had not exceeded their powers in electing new members into their body; for the general intention of the deed was, that there should be a succession of trustees on the death of those originally created; and the period of their being reduced to fifteen, was that at which they were compellable to fill up their numbers, although they might do it sooner (p).

The founder of a school directed, that so often as the trustees should be reduced to two, such survivors should nominate a certain number of persons, being inhabitants of a particular parish. An information to remove them because they were not such inhabitants was dismissed by Lord Thurlow, no evidence having been given that there

(p) Doe d. Dupleix v. Roe, 1 Anstr. 86.