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Court from appointing any trustee who was not a member of the Church of England. This is undoubtedly a Church of England charity, and if the objection had any foundation in fact it would certainly have been fatal to the appointment. The three gentlemen mentioned in the order are now ascertained to be all Churchmen, although at first it was thought not to be the case. The objections do not warrant me in interfering with the order of the Commissioners." The petition was accordingly dismissed with costs.

The Education Department in their instructions as to transfers state that if there is any trustee of the school who is not also a manager (whose address is known), the proposed terms of arrangement should be shown to him, and his observations thereon communicated by the clerk of the school board to the Department.

(3) The Education Department in the instructions state, that if there are any societies (such as the British and Foreign School Society, the National Society, the Wesleyan Education Committee, the Roman Catholic Poor School Committee, or any local educational body) who have contributed to the establishment of the school, the proposed terms of the arrangement should be shown to them, and their observations thereon communicated by the clerk of the school board to the Department. The view which the board and the managers. take of these objections should also be communicated to the Department, who should be informed what practical reasons prevent the board and the managers from agreeing to meet any objections made by the society to the arrangement, on the ground that it involves an unnecessary departure from the terms of the original trust.

In the case of The National Society v. The London School Board, L. R. 18 Eq. 608; 44 L. J. Ch. 229; 31 L. T., N. S., 22, it appeared that the National Society made a grant of 220/. in the year 1867 towards the establishment of a Church of England school, and a trust deed for the management of the school was executed, providing that the school should "always be in unison with and conducted according to the principles and in furtherance of the ends and designs of the National Society." The deed contained no power of disposing of the school site by way of alienation. At a meeting of the managing committee of the school in May, 1872, a resolution was passed that the school should be transferred to the London School Board under the provisions of this section, and it was transferred accordingly. The deed of transfer contained certain stipulations for providing religious instruction to the children at stated hours during at least two days in the week. The National Society, prior to the transfer, appeared before the Education Department under the provisions of the Act, and objected to the transfer, but their objections were overruled by the Department, who gave their sanction to the arrangement. The society thereupon filed a bill for the purpose of obtaining a declaration that the provisions of the trust deed of the 25th of February, 1867, ought to be observed in the management of the school established thereunder, and that no departure from the principles of education according to which such school was established could properly be effected without the sanction of the society. Also, that the transfer of the school to the school board was illegal. For the National Society it was argued that a transfer of the school could not be made without the consent of the society, who had advanced their money on the faith of the school being carried on in accordance with the principles of the Church of England, and that even if a transfer could be

effected without such consent, it could only be effected subject to the trusts declared by the trust deed. Vice-Chancellor Malins in delivering judgment, said:-What were the circumstances under which a transfer of a school to a school board might be made? First, there was the general power given to the managers of the school to make the transfer. Then the 23rd section of the Act required the consent of the Education Department to the transfer, and also of the majority of the annual subscribers to the school. Down to this point all the provisions of the Act had been complied with in the present case. Was it necessary to obtain any other consent? The following proviso in the section was relied on by the plaintiffs:-"Provided that where there is any instrument declaring the trusts of the school, and such instrument contains any provision for the alienation of the school by any persons or in any manner or subject to any consent, any arrangement under this section shall be made by the persons in the manner and with the consent so provided." It was said that under that proviso the consent of the National Society was necessary. The answer to that was that although there was a deed stating the trusts upon which the school was to be held, it contained no provision for alienation, and therefore the proviso was clearly inapplicable to the present case, and no further consent was required for transfer to the school board than had already been given. It was argued with great force that the managers were so inseparably connected with the National Society, the society being the principal supporters of the school, that it was most extraordinary to suppose that the Act intended to give the managers power to transfer the school without the society having a voice in the matter. But the society had a voice in the matter; they had a locus standi before the Education Department. In the present case they were heard, and the decision of the Department was final on the subject. The section seemed framed so as to have regard to the vested interests of all persons, for one of its provisions was, that "where any person has a right given him by the trusts of the school to use the school for any particular purpose independently of such managers, nothing in this section shall authorise any interference with such right, except with the consent of such person." This was an instance in which vested interests were protected by the Act, and he could not come to any other conclusion than that the Act did not give the National Society a veto on these transfers. He could not say that such a veto, if it existed, would be expedient, being reserved, as it would be, to a body having such a formidable power as this society; and that was probably the reason why a provision reserving them that veto was not inserted in the Act. There was one other point. The school having been transferred to the school board, under whom religious instruction in any particular doctrines was excluded, the deed of transfer provided that on at least two days in the week the children might be instructed in the principles on which the school was established-namely, in the principles of the Church of England. Therefore, on the whole case, he was of opinion that the bill could not be sustained.

(4) As to the terms of an arrangement which may be made under this section, the Education Department in their instructions as to transfers of schools state as follows:

"(a) The arrangement may be for a term of years, or for the entire interest which can be transferred under section 23. When the intended transfer is for a term of years or for a period determinable by a notice to the school board, the board should con

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sider how they may be recouped the expense of any permanent alteration or enlargement of the premises which may be effected by them during their holding.

"(b) The arrangement should show clearly what premises are transferred, and that such premises are subject to the trusts which affect the school premises.

"(c) The board must not undertake to pay any consideration other than a strictly nominal one (say five shillings) whether such consideration consists of a price or of a rent.

"(d) The arrangement may provide for the discharge of any bona fide incumbrance which is secured by a charge on the school premises, provided the amount of such incumbrance does not exceed the value of the interest in the premises and endowment transferred to the board.

"(e) The arrangement may provide for the board keeping down the interest on any such incumbrance as that specified in paragraph (d), provided the annual amount of such interest does not exceed the annual value of the interest in the premises and endowment transferred to the board.

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"(ƒ) The arrangement must not provide for the payment by the board of any other debt, or for the keeping down by the board of the interest on any other debt.

"(g) The arrangement must not provide for the payment by the board of the current expense of maintaining the school during any time prior to the date of the transfer, and this date must not be earlier than the date of the consent of the Education Department to the terms of arrangement for transfer.

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(b) The board may undertake to pay their proper share of such outgoings as rates, taxes, ground rent, insurance, repairs, heating, lighting, and cleaning.

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"(k) Where it is found more convenient for any reason that the trustees or managers should by the arrangement undertake in the first instance to pay for the whole of any such outgoings as are mentioned in paragraph (b), the following clause may be introduced into the arrangement. Provided always that the board shall pay in respect of their share of [the outgoings in question] such reasonable sum, not exceeding £ per annum, as shall be actually expended by the trustees or managers thereon.' The board must not undertake to pay a fixed lump sum per annum, in consideration of the trustees or managers paying for the whole of, or any of, the aforesaid outgoings.

"(1) If the fittings, furniture, books and apparatus of the school are private property, they should be dealt with by a distinct agreement outside of any arrangement submitted to the Education Department under section 23. If, however, these articles can only be dealt with by an arrangement under that section, there must be no valuable consideration given for them or for their use by the board.

"(m) The arrangement may provide for the trustees or managers reserving to themselves the use of the school premises during Sundays, and during other times, provided a sufficient use is transferred to the board to enable the board to carry on upon the premises a public elementary school.

"(n) If the use of any teacher's residence is transferred to the board

at all, such residence should be excepted from any reservations in favour of the trustees or managers.

"(0) The use to which the trustees or managers think they may legally put the school premises during any reserved times must not be specified in the arrangement for transfer, as the Education Department do not think they should be called upon to express any opinion upon that point.

"(p) The arrangement must not prescribe the kind of instruction (whether religious or secular) to be given in the school. It must not contain anything as to the examination or inspection of the school, the appointment of managers or teachers, the admission of children, or the general management of the school. The school, so far as transferred to the board, must be managed in every respect as the board for the time being see fit, subject only to sections 7 and 14 of the Elementary Education Act, 1870. "(q) In cases in which a transfer of a school in receipt of annual grants takes place in the course of the school year the arrangement may provide for the managers receiving such proportion of the grant as corresponds to the number of months which have elapsed between the end of the last school year and the date of the transfer."

It is the practice of the Education Department to pay the annual grant on account of a school to the persons who constitute the Governing Body of the school at the date of the payment of such grant.

With reference to the transfer of an endowment to a school board, see School Board for London v. Faulconer (L. R. 8 Ch. Div. 571; 48 L. J. Ch. 41). In that case it appeared that by the terms of a scheme approved in 1862, for appropriation of the increased revenues of a charity estate originally applicable to the relief of the poor, it was provided that the sum of 90l. per annum should be paid by the trustees to the treasurer of a school association, in aid of the expenses of a school in Flint Street, Walworth," or any other school that may be established in its stead," provided that no sum should be paid to any school which became the property of any exclusive denomination or sect, and that if the school should at any time thereafter become "materially altered in discipline, number of children or other circumstances," then the 90l. should "in the discretion of the trustees," be applied for educational purposes among other schools of a similar character in the parish. In 1873, the Flint Street School was transferred by the managers to the school board, under the provisions of this section, the managers at the same time by deed assigning to the school board the endowment, "so far as they lawfully could assign the same." The trustees of the charity estate refused to pay to the school board the amount of the endowment, and a declaration was claimed that the school board as transferees and managers of the school were entitled to receive out of the income of the charity the sum in question. The defendants submitted that the 90l. a year was not an endowment which the managers were enabled by the statute to transfer; that the school had ceased to be a local school, and was now one of the general schools of the metropolis, and that the 90l. a year was otherwise required for the benefit of the poor of the parish, and ought to be so applied. It was further contended that the payment to the school board would give to the poor inhabitants no greater advantage than they would have if no such payment was made; that the payment would go into the

general funds of the board, that no diminution would be made in the school fees, and that no diminution to the parish would accrue except a small decrease in the general rates, their proportion of which would amount to about 275. a year. For the plaintiffs it was proved that the character of the school since the transfer remained unaltered, except that girls were admitted as well as boys, that the numbers had somewhat increased, and that the efficiency of the school was improved. It was further stated that the endowment would not be allowed to go into the general funds of the school board, but would be applied for the benefit of the particular school. A declaration as claimed was ordered.

In Gurney & Others v. West Ham School Board, which came before Chitty, J., in March 1891, it appeared that the testator bequeathed to the trustees for the time being of the British School for Boys at Sfor the use of the school an annuity of £100, to be payable so long as not less than eighty boys were educated in the school, and so long as the school was "carried on under the system of the Holy Scriptures being well taught therein without the peculiarities of any particular sect of professing Christians, and without the teaching of the Catechism of the national religious establishment of England.” Otherwise the annuity was to cease. There was a similar bequest to the trustees for the time being of he British School for Girls at S, on like conditions. The schools referred to were, under this section, transferred to the school board of the district, and the arrangement included the transfer of the benefit of the annuities. The testator's trustees asked for a declaration that the annuities ceased to be payable under the will by reason of the schools having been transferred to the school board, and the consequent or possible change in the management of the schools in respect of religious instruction. From the evidence it appeared that the conditions as to the number of children attending the schools had been fulfilled, and that there had been no change in the nature of the religious instruction. It was held that the annuities were still payable, the conditions of the bequest not having been infringed.

See also Re Poplar and Blackwall Free School, post, p. 245, as to application of the charity funds of a charity school transferred to a school board.

When the school board undertake a debt charged on a school transferred to them, the amount may be borrowed under the provisions contained in the 36 & 37 Vict., c. 86, sec. 10, post.

With regard to loans to school boards on account of schools transferred for a term of years, the Committee of Council on Education, on the 13th August, 1875, resolved as follows:

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(1) That it is expedient to apply to arrangements for transfer for a term of years the principle laid down by section 24 of the Act of 1870, with respect to the repaymeut of loans in cases of retransfer under that section.

"(2) That, with this view, the consent of the Education Department shall not be given to any arrangement for the transfer of school premises for a term of years, unless such arrangement provides that the board shall retain possession of the premises at the end of the term, until the then value of any works executed with the aid of a loan shall have been repaid to the school board: "(3) the amount to be repaid in each such case shall be ascertained, and certified, by a surveyor selected jointly by the school board

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