Scottish Court of Session Decisions

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Cite as: [1899] SLR 36_721, [1899] ScotLR 36_721

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Saturday, June 10. 1899.

36 SLR 721

Kirk Session of Largs

v.

School Board of Largs.

Subject_1Expenses
Subject_2Charitable and Educational Trust
Subject_3Administration
Subject_4Right of Respondent to Expenses.
Facts:

When a private individual or a public body appears and lodges answers in an application to fix a scheme of administration of an educational trust fund, the measure of the respondent's right to his expenses out of the trust fund is the extent to which his intervention has furthered the interests of the trust administration.

Circumstances in which, following the above principle, a school board, which appeared as respondent in an application to fix a scheme of administration of the funds of an endowed school within its district, held entitled to one-third of the expenses of its appearance out of the trust fund.

Headnote:

The Reverend John Keith and others, being the members of the Kirk Session of Largs, presented a petition to the Court for authority to sell the site and buildings of the Female School of Industry at Largs, and for directions as to the application of the price.

The petitioners set forth that the site had been conveyed to them for the erection of a school for the children of poor persons, the said school to be under the inspection of the Presbytery of Greenock, and to remain in perpetual connection with the Established Church of Scotland The cost of the building was defrayed partly by a grant from Government, partly by private subscription. The school was managed and maintained by the Kirk Session down to 1893, when the establishment of a large public school at
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Largs and the abolition of fees rendered it no longer necessary.

The petitioners proposed that the money resulting from the sale should be applied by devoting the annual income therefrom to the purposes of the library maintained in connection with Largs Parish Church Sunday School, and to providing class hooks for the children attending the same.

Answers were lodged by Mr Dewar Paton, who had been an annual subscriber to the school for nearly thirty years, and by the School Board of Largs. The respondents objected to the proposed scheme of administration on the ground that, under it, the funds of the endowment would be applied for the benefit of one religious denomination exclusively, whereas the charity had hitherto always been conducted irrespective of creed or sect. The respondents accordingly craved that the proceeds of the sale should be handed over to the School Board of Largs.

Mr Ewan Macpherson, advocate, to whom the Court remitted to report and prepare a scheme, submitted a scheme the substance of which was that the yearly income of the trust funds should be applied in the purchase of books, to be housed in the Parish Church Sunday School library, and to constitute a special department of that library, for the use, without any charge being made, of all boys and girls attending public or State-aided schools within the parish of Largs.

On the reporter's scheme appearing in the summar roll, neither party objected thereto, but the respondents asked for their expenses out of the trust fund, and argued—The intervention of the respondents here had been of assistance, for it was on their suggestion that the benefits of the fund had been extended to children of all denominations. The respondent had also kept the petitioners' right in sundry details of procedure, e.g., by suggesting intimation to the Lord Advocate.

Argued for the petitioners—The respondents had pressed for the fund being handed over to the school board, in defiance of the decision in The Kirk Session v. School Board of Prestonpans, November 28, 1891, 19 R. 193. In that contention they had been wholly unsuccessful, and they were therefore not entitled to their expenses.

Judgment:

Lord President—When a party comes forward as respondent in an application of this kind, and at the end of the proceedings demands his expenses out of the trust funds, it seems to me that the proper inquiry is—What advantage has his appearance rendered to the due administration of the fund? In the present case the intervention of Mr Trotter's clients has been advantageous to a certain extent. They have called attention to certain points on which the petitioners very properly gave way, and to certain other points by which the reporter's opinion may have been modified. But that does not necessarily lead to the conclusion that Mr Trotter's clients are entitled to full expenses, because in the first place the counter scheme proposed by them has been rejected, and it was the main, or ostensibly the main, object of their lodging answers. I think therefore we shall do well if, adopting the criterion I have stated, and having regard hereby to the extent to which the interests of the trust administration have been furthered, we give them one-third of their expenses out of the trust fund.

The only other observation I wish to make is that for my part I should not like it to be supposed that every school board, when an endowed school within its district comes into Court with a scheme, is entitled to come forward and take part in the proceedings as a matter of course and get expenses out of the endowment. It may very well be that in the public interest a school board may think it right to come forward at its own expense, but it must not depend on its being necessarily treated as a tutelary deity of the endowment whose presence is indispensable to the success of its every enterprise. I say this to guard against even this modest grant of expenses being construed as an invitation to school boards to come forward and take part in proceedings like the present.

Lord Adam, Lord M'Laren and Lord Kinnear concurred.

The Court approved of Mr Macpherson's report and scheme, allowed the petitioners their expenses out of the trust fund, and found the respondents entitled to one-third of their expenses.

Counsel:

Counsel for the Petitioners— Chisholm. Agent— J. B. M'Intosh, S.S.C.

Counsel for the Respondents— Trotter. Agent— William Fraser, S.S.C.
1899