1910 MATTHEWS v. SMALLWOOD. PARKER J. of the original lessee, who was bound by covenant not to assign or underlet without licence, and he purchased with the intention of laying out a considerable sum on the property. The Court held unanimously that L. had been guilty of negligence in entering into a contract, whereby he was precluded from investigating the title, and that relief against a forfeiture by the original lessee for breach of the covenant ought not to be granted to him because of that negligence. It would appear, therefore, that though negligence is immaterial in respect of cases in which relief can now be given to a lessee, yet-with regard to the covenants excepted in the earlier Act in respect of which the Court can give relief to an underlessee but not to a lessee-negligence is material. Therefore, if I take that as being the law upon the subject, I have to consider in the present case whether there was any such negligence on the part of the trustees of the debenture trust deed as to preclude them from having relief under this statute. I may say that I feel myself bound by the decision in Imray v. Oakshette (1), and though it has been a good deal criticized by counsel, I am not sure that the argument on which it proceeds is not sound. Certainly the covenant against assignment and sub-letting is placed by the two statutes, read together, in a totally different position from that in which any other covenant is placed by those statutes. Against forfeiture for breach of this particular covenant no relief can be given to a lessee; that is one of the things, and the great thing; and though it may be given to an underlessee, yet, inasmuch as no relief can be given to a lessee, it is not unreasonable to say that the circumstances under which relief ought to be given to an underlessee must be scrutinized closely, and if the Court has power, it is a power which must be exercised sparingly. If the power is to be exercised sparingly, I see no reason why you should not fall back on the old principle of equity that the law is not for people who neglect their own interest, but only for people who act with a view to the protection of their own interest. Whatever may be the theory underlying the case, it appears to me that I am bound by it, and that I ought not to give relief against this particular covenant unless I am satisfied that the person who (1) [1897] 2 Q. B. 218. v. SMALLWOOD. wants relief has not been guilty of any such negligence as is PARKER J. referred to in this case. I am therefore thrown back upon the 1910 circumstances in which the sub-demise was made to the trustees MATTHEWS of the debenture trust deed. It appears that those trustees took the security without any investigation of title, simply intending to rely on such title as the company could give them. They also took their sub-demise without considering whether it was a sub-demise which, having regard to the terms of the lease, would be operative, or whether it would or would not be one which would cause a forfeiture. Possibly from the point of view of a business man, having regard to the fact that it was a large property, and to the circumstances in which the issue of debenture stock was made, that may have been a justifiable course. But at the same time, if a man says "This is a case where I will run the risk of there being a defect in the title," or "I will run the risk of the subdemise which I am taking operating as a forfeiture," I do not quite see why the Court should subsequently interfere to protect him against that very risk. A prudent man, when he is advancing money upon mortgage, will investigate the title; and a prudent man, even if he thinks that he can dispense with an investigation of the title, will, in the case of leaseholds, take care to see that the sub-demise, or instrument for security, which he takes is in conformity with the terms of the lease under which the property is held. There may be reasons, and special reasons, why he should not act in that way in any particular case; but not so to act is a disregard of his own interest and a taking of a risk which he is not compelled to take. It appears to me, therefore, that by deliberately neglecting to investigate the title, and deliberately not asking to see the lease in order to ascertain whether a sub-demise could be granted, the trustees in the present case were guilty of that so-called negligence which is really a disregard of their own interests as distinct from negligence in not carrying out some duty towards somebody elsethat recklessness with regard to their own interests which I take to be at the base of the decision in Imray v. Oakshette. (1) Under the circumstances it appears to me that I really cannot give relief in this case without acting contrary to what has been laid (1) [1897] 2 Q. B. 218. PARKER J. down by the Court of Appeal, and therefore the claim for relief 1910 MATTHEWS v. SMALLWOOD. fails. Solicitors for plaintiffs and the company: Skewes-Cox, Nash & Co. Solicitors for defendant Smallwood: Stow, Preston & Lyttelton, for Crowder & Smallwood, Birmingham. Charitable Trust-School-Scheme-Religious Instruction-Government Grant Where the primary object for which a secondary school was originally founded cannot be given effect to under its existing constitution without the aid of grants from the Board of Education, the Court will modify the scheme of the Charity Commissioners under which the school was being administered, so far as necessary to comply with the regulations of the Board of Education and enable the school to secure the grants. PETITION. This was a petition by the governors of the Queen's School, Chester, presented with the leave of the Board of Education under s. 17 of the Charitable Trusts Act, 1853, asking that it might be referred to chambers to prepare a new scheme for the administration and management of the school, modifying the existing scheme in certain particulars. The object of the petition was to enable the school to comply with the regulations of the Board of Education and obtain Government grants. The school was originally founded in 1877 and opened in May, 1878, in a private dwelling-house. In 1880 a site for the school was offered by the Duke of Westminster and conveyed by a trust deed of February 14, 1882, in which the object of the school was stated to be "to offer a religious, liberal, and useful education to girls on such terms as shall, as far as possible, make the school self-supporting, but without a view to any ulterior profit." It was also provided by the same deed that it should be a permanent by-law of the institution as follows:"The head mistress shall be a member of the Church of England, and she shall, under the direction of the council (meaning the board of management of the school), make proper regulations for religious instruction to be given in the school in accordance with the doctrines of the Church of England as by law established; but the parent or guardian of, or person liable to maintain, or having the actual custody of any scholar may claim by notice in writing addressed to the head mistress the exemption of such scholar from attending prayer or religious worship. The new buildings were erected and the school opened on February 6, 1883. A scheme, dated June 19, 1900, was drawn up by the Charity Commissioners for the administration of the school. Under that scheme, by articles 3 to 5, the governing body was to consist of sixteen competent persons, of whom the one ex officio governor was to be the Lord Bishop of Chester for the time being, and there were eleven representative governors appointed by local bodies and trustees of charities, and four co-optative governors. Article 34 provided as follows: "There shall be a head mistress of the school. She shall be a member of the Church of England, and shall have such qualification, or certificate, or other test of her attainments as may be fixed from time to time by any regulation of the governors approved by the Charity Commissioners. . . . ." Article 54" Subject to the provisions of this scheme religious instruction in accordance with the doctrines of the Church of England shall be given in the school under regulations to be made from time to time by the governors. No alteration in any such regulations shall take effect until the expiration of not less than one year after notice of the making of the alteration has been given by the governors in such manner as they think best calculated to bring the matter within the knowledge of persons interested in the school." The average number of scholars attending the school since the institution of the scheme was 156 per year, and the fees payable EVE J. 1910 QUEEN'S SCHOOL, CHESTER, In re. EVE J. 1910 QUEEN'S CHESTER, In re. varied from 91. to 15l. 15s. per year for day scholars, and from 431. 158. to 51l. per year for boarders. The school was carried on at a loss. In 1906, upon the application of the governors, it was SCHOOL, placed on the list of secondary schools by the Board of Education, and the deficits of 219l. for that year and of 5211. for 1907 were met by grants from the Board, who agreed to waive their existing regulations as a matter of indulgence. In 1909 new regulations for secondary schools were issued by the Board, and these provided, inter alia, 5 (a) that no catechism or formulary distinctive of any particular religious denomination should be taught in the school except as therein provided; (b) "If the instrument under which the school is governed requires, or does not prohibit, the giving in the school of religious instruction distinctive of any particular denomination, the governing body may provide such instruction for any pupil upon the written request of the parent or guardian of the pupil. A record must be kept of all such requests." Article 23 provided that the instrument under which the school was governed must not require any members of the teaching staff to belong, or not to belong, to any particular denomination. Article 24 provided that the governing body of the school must contain a majority of representative governors. By article 45 the Board of Education had power, on failure of a school to fulfil any of the conditions of grant contained in the regulations, to withhold the grant, or to pay it with or without deductions. The governors had now under consideration the erection of a new block of buildings, containing a laboratory for the teaching of science, a gymnasium, and additional class rooms, all of which were urgently needed for the educational efficiency of the school. Grants for this purpose to the amount of 4000l. had been promised by local authorities upon condition that the scheme was amended so as to render the school eligible for grants from the Board of Education. In view of the fact that the school, which was carrying on an educational work of great value, could not continue to exist unless it received the contributions from the local authorities and |