The founder may make the persons to whom he gives the school property on trust also the governors of his foundation for all purposes ; and if he names no spe cial visitor, it appears that such persons will be visitors as well as trustees. If he names a person as visitor, such person is called a special visitor ; and it is a gene ral rule that if the founder names no special visitor, and does not constitute the governors of his foundation the visitors, the heir-at law of the founder will be visitor ; and if there is no heir-at-law, the crown will visit by the lord keeper of the great seal. The king is visitor of all schools founded by himself or his ances tors. The duties of trustees and visitors are quite distinct, whether the same per sons are trustees and visitors, or the true tees and visitors are different. It is the duty of trustees to preserve the school property, and to apply it to the purposes intended by the founder. In respect of their trust, trustees are subject to the jurisdiction of the Court of Chancery, like all other trustees ; and of course they are answerable for all misapplication of the funds. It is the visitor's duty to in quire into the behaviour of the master and usher in their respective offices, and into the general conduct of the school. He must judge according to the founder's rules, which he cannot alter unless he is empowered by the terms of the donation to do so. There seems to be no reason for supposing that the king, in respect of royal foundations, has any further power than other persons, and consequently he cannot alter the terms of the donation, unless this power was originally reserved to the founder and his successors ; but on this matter there may be some difference of opinion. The visitor, or those who have visitorial power, can alone remove a master or usher of an endowed school. The Court of Chancery never removes a master or usher, when they are part of the corporate body, on the general prin ciple that this court has no power to remove a corporator of any kind ; and when there is a visitor, or persons with visitorial power, the Court never attempts directly to remove a master or usher, even if they are not members of the cor poration. (17 Ves., Att.-Gen. v. the Earl of Clarendon.) Trustees of endowed schools which are not incorporated are accountable in a court of equity for the management of the school property. But the internal management of the school still belongs to the special visitor, if there is one; and if there is no special visitor it belongs to the founder's heir. Trustees of endowed schools, simply as such, are merely the guardians of the property, as already observed; and it is their duty to take care of it, and to apply the income according to the founder's intention. It has, how ever, happened that in schools not incor porated the jurisdiction of the Court of Chancery and the visitorial jurisdiction have not been kept quite distinct ; and cases have arisen in which it has been found difficult to determine what ought to be the proper mode of proceeding.
A free grammar-school is an endow ment for teaching the learned languages.
or Greek and Latin, and for no other purpose, unless the founder has prescribed other things to be taught besides gram mar. This legal meaning of the term grammar-school has been fixed by va rious judicial decisions, and it appears to be established that, if the founder merely expresses his intention to found a gram mar-school, the school must be a school for teaching Latin and Greek only, at least, so far as the teaching is gratuitous; other branches of instruction may be introduced, hut the scholars must pay for this extra instruction. If it should hap pen that the endowment has, for a long time, been perverted from its proper pur poses, this will not prevent the Court of Chancery from declaring a school origin ally designed for a grammar-school to be still a grammar-school, and it will give the proper directions for carrying into effect the founder's intentions, whatever may be the length of time during which they have been disregarded. This was
the case with the grammar-school of Highgate, in the county of Middlesex, which was founded by Sir Roger Cholme ley, under letters patent of Queen Eliza beth, under the title of the Free Gram mar-school of Roger Cholmeley, Knight. The statutes were made in 1571, by the wardens and governors, with the consent of the Bishop of London, under the au thority of the letters patent. The first statute ordered that the schoolmaster should be a graduate, and should teach young children their A. B, C, and other English books, and to write, and also in their grammar as they should grow up thereto. An information which was filed against the governors, charged that the school had been converted from a free grammar-school into a mere charity school, and that the governors had. in other ways, abused their trust. The facts of the abuse were established, but it was shown that, so far back as living memory could go, the school had been merely a place of instruction in English, writing, and arithmetic; and also that, in other respects, the statutes had not been ob served as far back as the year 1549. Not withstanding this, it was declared by the chancellor (Eldon) that this was a school originally intended for the purpose of eaching grammar, and a decree was made for restoring the school according to the intention of the founder. But it appears from the first statute that the school was also intended to be an English school.
As to teaching something besides Latin and Greek in an endowed school, Lord Eldon observes (Att.-Gen. v. Hartley, 2 J. & W., 378), "if there was an antient free grammar-school, and if at all times something more had been taught in it than merely the elements of the learned languages, that usage might engraft upon the institution a right to have a construc tion put upon the endowment different from what would have been put upon it if a different usage had obtained." When the founder has only intended to establish a grammar-school, and has applied all the funds to that purpose, none of them can be properly applied to any other purpose, such as teaching the modern languages or other branches of know ledge. When the funds of a school have increased so as to be more than sufficient for the objects contemplated by the founder, the Court of Chancery will di rect a distribution of the increased funds, but it will still apply the funds to objects of the same kind as those for which the founder gave his property. If then a founder has given his property solely for the support of a grammar-school, it is in consistent with his intention to apply any part of the funds to other purposes, such for instance as paying a master for teach ing writing and arithmetic ; and yet this has been done by the Court of Chancery in the case of Monmouth school (9 Russ., 530) and in other cases. The foundation of Monmouth school consists of an alms house, a free grammar-school for the edu cation of boys in the Latin tongue, and other more polite literature and erudition, and a preacher. The letters patent de clared that " all issues and revenues of lands to be given and assigned for the maintenance of the almshouse, school, and preacher, should be expended in the sus teutation and maintenance of the poor people of the almshouse, of the master and under-master of the school, and of the preacher, and in repairs of the lands tod possessions of the charity." Not withstanding this, the Court of Chancery appointed a writing-master, at a salary of 601. per annum, to be paid out of the issues and revenues ; and thus it took away 601. per annum from those to whom the founder had given it. This was done on the authority of a case in the year 1797, which was itself a bad precedent.