passed without the required notice; no advertisements, such as are required by the law, having been published. The interlocutor must be reversed. It ought to have passed the bill, in order that there might be a full inquiry in the Court below.

Mr. Anderson, on the same side:

The trustees here claim an arbitrary power, which it is clear the law will not concede to them.

(THE LORD CHANCELLOR: Suppose that there had been no charter in this case, but it had been a mere private school, could not the trustees have dismissed the master? And if so, does the mere act of incorporation make this difference in the rights of the parties ?)

In a private school the dismissal might possibly take place. Such a school would be endowed by private individuals from their private funds, and they might regulate the provision they would give the master, and the conditions under which he was to receive it. But that is a thing totally different from a public school, where the public have an interest, and where they have to examine into the administration of the foundation funds. The school here is a public school. It is established for a great public purpose, and the managers and directors of it have had their powers conferred on them by the subscribers for the purpose of promoting the object of the public utility, which was the cause of the creation of the institution. If there is not this difference between strictly *private establishments and institutions of a different kind, even borough and parish schools would be made subject to the caprice of the trustees. The numerous cases on this subject have settled that that course shall not be applicable to them.

(THE LORD CHANCELLOR: Have you any case in which the line has been drawn between those privately endowed schools which have been incorporated, and those which have not been incorporated ?)

There is no case of that kind, unless the contest between the case of Mason v. Scott, and the Inverness case, can be considered as establishing that line of distinction.

(THE LORD CHANCELLOR: The question depends entirely on the terms of the charter. In that case there had been certain conditions established, by which the right to dismiss was restricted to a case where there were proper grounds.)

R.R.-VOL. LI.

2

GIBSON

v.

Ross.

[ *253 ]

GIBSON

v.

Ross.

[ *254]

The principle is clear, but was not carried out in Mason v. Scott, simply because that case was one of a merely private school.

The Attorney-General and Sir W. Follett appeared for the respondents, but were not called on to argue the case.

THE LORD CHANCELLOR :

My Lords, I should be inclined to take that course which would enable the parties to go on with the suit, if I thought that I could properly do so. But if your Lordships have no doubt, on the appellant's own statement, that the Court below has come to a correct conclusion, it would be an injustice to permit the parties to engage in further litigation. This case is that of an appointment to the mastership of a school, and of the right claimed by the school trustees to dismiss from that appointment. Certain individuals who had determined on establishing a school, having met together, thought it would be *for the advantage of the object they had in view, that they should obtain a charter of incorporation for themselves and for those who might afterwards come in their place. But the whole matter was of a private nature. Its object was to provide funds, and those were to be considered members of this voluntary body, incorporated by the Crown, who should contribute to the support of the school. It has been decided that where individuals establish a school, to be maintained from private funds, the regulations under which public schools are conducted, are not to be deemed applicable to them. A public schoolmaster is a public officer, and as such he cannot be dismissed without an assigned and sufficient cause. But it is clear that in the case of a private trust this rule does not apply. That is a clear and well-settled principle of law. Then arises another question, namely, one relating to the effect of an incorporation. I asked, in the course of the argument, whether there was any line of distinction drawn between the case of a private establishment, the members of which had been incorporated, and a case in which no such incorporation had taken place; and I could not find that any such distinction had ever been adopted. If so, then I am sure that your Lordships would not for the first time introduce such a distinction: nothing could more disturb the arrangements of a private establishment than that a subordinate officer in it should be considered to have a fee in his office. It is incumbent on a person who claims such an advantage, to show that it properly belongs to him. Now there are many

cases in which it would be highly inexpedient for the interest of a body like these trustees that a man should continue in his situation. though it might be difficult to show a legal ground for his removal, He may be unsuccessful in the discharge of his duties; he may have great abilities, but yet be unable effectually to exert them in the instruction of his pupils. This might be a great evil to an institution of this nature, and yet it might not amount to a cause which in a court of justice would justify the dismissal of the master. At the same time it must be admitted that the circumstance I have mentioned would form a good ground for desiring the master's dismissal. But the same rules are not established in private as in public schools, and there is no case to show that the mere incorporation of the trustees of a private establishment subjects them to the same rules as those which affect public establishments. It is now material to refer to this charter; for your Lordships may be of opinion that it is not necessary to establish a general rule, but that the case may be determined on the words of this particular charter. What then are these words? The power given to these trustees is very large. They are to have a common seal, and full power to appoint their successors. So far from the charter limiting the power of the corporation, the trustees have the most unlimited discretion vested in them to make rules and regulations for the better government of the academy. (The LORD CHANCELLOR here referred to the terms of the charter; see p. 10, supra.) The powers given to them are therefore as ample as language can convey. It appears too that the appellant was aware of these powers; for there had been previously communicated to him certain minutes of the directors, of the 16th of December, 1812, and amongst others he was informed of the bye-laws which they had framed for the regulation of the school. (Here his Lordship referred to the bye-laws, and to the notification of them given to the teachers on their election.)

These were communicated to the present appellant previous to his acceptance of office. It seems to me to be immaterial, these facts being established, to inquire whether the bye-laws were advertised in the papers or not, for he accepted office under the terms of the proposed law which was afterwards regularly enacted on the 30th of April. When it is found that the charter itself left the managers of this institution at liberty to make such laws as they might think fit, and when it is found that by the laws they have made they have limited the powers which the charter gave

GIBSON

v.

Ross.

[ *255 ]

[256]

them, that they have confined their own powers as to the discontinuance from employment of any of the teachers to cases where they may think such discontinuance necessary, which opinion of necessity is to be declared under certain circumstances and in a certain manner,-I cannot find a ground for saying that they have exceeded the limits of the authority which they lawfully possess. This act of the trustees, indeed, gives a protection to those who may happen to be appointed, who can only be discontinued on notice, and on a meeting being held to regulate the proceedings for that purpose, and if it should be found necessary: found necessary for what? Is it possible that any other persons could have a right to judge of this necessity but those who made the appointment and settled the rules under which it should be held? We cannot doubt that the law would enable them to give judgment on that. It was originally introduced for that purpose, and the observations of Lord JEFFREY apply to that matter. Remarking on the difference between the interim law of the 16th December, 1812, and that which was finally adopted on the 30th of April following, he says, "in the former it is provided that a teacher may be removed, not only if found on inquiry by the *directors to be unworthy of trust, but also if he be unsuccessful; whereas in the latter he is only to be dealt with in case it shall be found necessary." The language varies, but the sense is the same. It is by law part of the contract between the directors and the master, and is in fact a restriction on the power which the directors have a right to exercise. Under these circumstances the teacher becomes a teacher in this academy; and at a meeting regularly convened, the directors determined, in a way into which your Lordships cannot now inquire, that the services of Mr. Gibson should be discontinued. If they had the legal right to do that, your Lordships cannot interfere with their exercise of that right. There are in the case circumstances stated which appear to be matters of hardship on the appellant; but they are only part of the narrative of the case, for there is no evidence of them laid before you. The question now simply is whether the right which the directors claimed to exercise at the regular meeting of this body, was a right which they had authority to exercise? The case does not in my mind show any ground to doubt that they had this legal authority. It is clearly established that private society would have the right to dismiss a master, and there is no difference here between these parties and any other private society, except that these parties are incorporated. If the charter of

incorporation imposes any restrictions on them, they would by the acceptance of it be considered to enter into a contract with the Crown to exercise their authority subject to those restrictions. That was the Inverness case (1), in which it was held that the party could not be dismissed without a good reason being given for his dismissal. *The case there showed what was the reason assigned. Then in a case of that kind there must be some jurisdiction to determine whether the reasons on which they acted were valid or not. But here that is not so, for the trustees have reserved to themselves an unqualified power of judging of the necessity, and the appellant has accepted the office acquainted with and assenting to that reservation.

The cases of parish schools seem to be admitted to have no application to the present. It is said indeed that this must be considered as a public school, because it has been incorporated. But, as it seems to me, the mere fact of the incorporation by charter does not distinguish this institution from a private school. The Inverness case is the only one which is supposed to have any application to the present; but there the charter expressly limited the powers of the persons whom it incorporated. In consequence of the restrictions there imposed, the Court of Session said that that Court must judge of the exercise of the powers of the trustees, and of the reasons given for the exercise of those powers in any particular case. No such restriction exists here, and consequently no such reason for the interference of the Court can be alleged. Though there is not any case exactly in point with the present, yet the Ayr case (2) is in some respects similar. In that case there was an incorporation, and there certain rules were laid down under which the directors were at liberty to dismiss the master. Certain rules had also been laid down with respect to his appointment. One great question in that case was, whether the master who had been. secondly appointed, came into office under the same terms as those which had regulated the appointment of his predecessor; and it was considered that he did so. In that school the duties of the master were so far of a public nature that it was held not competent for those who had the management of the school to alter the tenure of the master's office, and to confer it only during pleasure. It was held there that cause must be shown for the dismissal, but that, independently of that, the master there came in under the conditions which had been imposed on his predecessor. According to (1) 14 Shaw & D. 714, n. (2) 4 Shaw & D. 63.