directing and sanctioning the general system and principle that ought to govern charities of those descriptions. But there are other cases where there is no question as to the conduct or management of the charities, but only whether the charity is entitled to a particular legacy or not. In those cases the Attorney-General is rather in the nature of a trustee for those charities, and the Court prefers having before it the charities beneficially interested, for the purpose of putting their interests before the Court in the light which they consider most favourable to them. In those cases I think it preferable that the charity itself should appear rather than the Attorney-General should represent it." charitable Accordingly, where the bequest is to the treasurer or other officer Gift to of an established charitable institution as part of its general funds, institution. the Attorney-General need not be a party (0). But where the legacy is to be held upon trusts differing from those on which the general funds of the institution are held, the Attorney-General is a necessary party (p). trustees. Nor is the presence of the Attorney-General necessary where Sums disannual sums are given to be distributed in charity by specified tributable by trustees (2), or where the fund, although a capital sum, is made immediately distributable (»). account. Where a bill was filed for an account, the Attorney-General was Action for held not to be a necessary party, merely because a legacy happened to be given to charity ($). formance. Nor is the Attorney-General a necessary party to an action by Specific per. third persons against charity trustees for specific performance of an agreement (t). But where it is desired to have a charitable gift declared invalid, Charitable the presence of the Attorney-General to represent the charity is to be invalid. legacy alleged required (u). trustees may By the Charitable Trusts Act, 1869, s. 13 (x), the majority of the Majority of trustees of a charity, if authorized by the Board of Charity Com- act on behalf missioners, may institute and maintain proceedings as if they were of all. the sole trustees of the charity and by the same section it is provided that proceedings instituted by the trustees or the majority of the trustees, under the authority of the Commissioners, shall not (0) Wellbeloved v. Jones, 1 S. & S. 40. (p) Ibid.; Corporation of the Sons of the Clergy v. Mose, 9 Sim. 610. But see Monill v. Lawson, Vin. Abr. tit. Charit. Uses, H. pl. 11. (a) Waldo v. Cayley, 16 Ves. 206; M'Coll v. Atherton, 12 Jur. 1042; and see Re Randell, Randell v. Dixon, 38 Ch. D. 213; and ante, pp. 126, 127. But see Horde v. Earl of Suffolk, 2 My. & K. 59. (u) Kirkbank v. Hudson, 7 Price, 212; Persons beneficially interested. Schoolmaster. Action to establish rentcharge. Lessee. Visitor. Persons having contingent interest. abate on the death or removal from office of a trustee or the addition of a new trustee (y). Persons (not being the general objects of the charity) having a beneficial or possible beneficial interest in the subject-matter of the action must be parties. Thus the heir-at-law must be a party, where the question is whether there is a resulting trust in his favour (~), or whether or not he is entitled to the increased rent of charity estates (a). Similarly the master of a school was held a necessary party to an action to have surplus funds applied for his benefit (b). As a rule, all the persons whose estates are liable must be parties to an action to establish a right to a rentcharge (c). An exception is, however, established in the case of charities. In these cases the Court determines the question whether the rentcharge is issuing out of the land of the persons actually before the Court, although the other terre-tenants are not parties, an inquiry being directed as to the other persons alleged to be liable (d). In an action to set aside a lease of a charity estate, the lessee or his representative, as well as any assignees or under-lessees of any part of the property, should be made parties (e). Where a private founder of a charity subject to visitation has appointed no visitor, his heir-at-law, being in contemplation of law the visitor of the charity, is a necessary party to an action for the execution of the trusts (ƒ). The Court of Chancery, however, in a case of this kind, refused to dismiss an information because of the absence of the heir-at-law, but directed an inquiry to ascertain who he was (g). Where an information was filed for the establishment of certain charities, consisting of estates given for the endowment of a school, and of others given for the foundation of scholarships in a college for boys to be nominated by the master of the school, it was held to be defective for want of parties, because the Archbishop of York, who had the appointment of the schoolmaster in default of his being (y) See also R. S. C. 1883, Ord. XVII. r. 1. (2) Att.-Gen. v. Green, 2 Bro. C. C. 492. (a) Att.-Gen. v. Haberdashers' Co., 4 Bro. C. C. at p. 106. And see Corporation of Ludlow v. Greenhouse, 1 Bli. N. S. at P. 55. (b) Att.-Gen. v. Smart, 1 Ves. Sen. 72. (c) Att.-Gen. v. Jackson, 11 Ves. 365, 367. (d) Ibid. at pp. 367, 372; Att.-Gen. v. Naylor, 1 H. & M. 809. And sce Att.-Gen. v. Shelly, 1 Salk. 163; Att.. (e) Att.-Gen. v. Backhouse, 17 Ves. at p. 285. See also Corporation of Ludlow v. Greenhouse, 1 Bli. N. S. at pp. 73, 74; Att.-Gen. v. Greenhill, 33 L. J. Ch. 208. (f) Att.-Gen. v. Gaunt, 3 Swanst. 148, n. (g) Ibid. Under the present practice no cause or matter can be defeated by reason of the misjoinder or non-joinder of partics: R. S. C. 1883, Ord. XVI. r. 11. appointed within two months by the master and fellows of the college, was not a party (h). Where a testatrix had given a legacy in trust for the minister of a chapel, but directed that upon a specified contingency it should go to the trustees of a college, and the income had been paid during many years to the minister of the chapel, it was held that the charity for the chapel might be established upon a bill and information to which the trustees of the college were not parties (i). Persons who have no interest, as, for instance, the original sub- Persons scribers to a charitable fund, do not require to be represented (k). having no interest. An agent employed by the trustees of a charity to manage its Agent of affairs, who receives the income, and has the title deeds in his trustees not proper party possession, is not a proper party to an action for an account and scheme (1). Where a fund had been raised by voluntary subscriptions for the Action by alteration and improvement of a church, and seventeen persons against some agents had constituted themselves into a committee for the purpose of others. receiving the subscriptions, and five of the members commenced an action on behalf of themselves and the other members against a former member for an account of money received and paid by him during his membership, it was held that as the members of the committee were mere agents for the subscribers some of the agents could not maintain an action against others (m). tion. Under the old practice, as a corporation did not answer on oath Discovery but under their common seal, and could not consequently be from corpora indicted for perjury, the secretary or other officer of the corporation might be made a party for the purpose of giving discovery (n). Under the present practice (o), where a corporation is a party the opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of the corporation. It is improper, therefore, now to join an officer of a corporation as defendant for the purpose of giving discovery, and if he is made a defendant his name will be struck out (p). (h) Att.-Gen. v. St. John's College, 7 Sim. 241. (i) Att.-Gen. v. Goddard, T. & R. 348. (k) Att.-Gen. v. Munro, 2 De G. & Sm. 122, 161, 162. (1) Att.-Gen. v. Earl of Chesterfield, 18 Beav. 596. The case would of course be different if a stranger had charity property in his possession and declined (m) Strickland v. Weldon, 28 Ch. D. (n) Dummer v. Corporation of Chippen- (0) R. S. C. 1883, Ord. XXXI. r. 5. SECTION II. PETITION AND SUMMONS. Jurisdiction on petition. Romilly's Act, Preamble. Sect. 1. Sect. 2. Romilly's Act. The jurisdiction of the Court of Chancery, and now of the Chancery Division, to deal with matters relating to charities on petition, is founded upon Sir Samuel Romilly's Act (r). That was the first enactment by which provision was made for a more summary mode of procedure than that by information. The jurisdiction has been extended in certain cases by subsequent statutes, but petitions under such Acts usually require to be entitled also in Romilly's Act (s). Romilly's Act was passed for the purpose, as is stated in the preamble, of providing "a more summary remedy in cases of breaches of trusts created for charitable purposes, as well as for the just and upright administration of the same." Sect. 1 provides that "in every case of a breach of any trust or supposed breach of any trust created for charitable purposes, or whenever the direction or order of a Court of Equity shall be deemed necessary for the administration of any trust for charitable purposes, it shall be lawful for any two or more persons to present a petition to the Lord Chancellor, Lord Keeper, or Lords Commissioners for the custody of the Great Seal, or Master of the Rolls for the time being (t), or to the Court of Exchequer (u), stating such complaint and praying such relief as the nature of the case may require; and it shall be lawful for the Lord Chancellor, Lord Keeper, and Commissioners for the custody of the Great Seal, and for the Master of the Rolls and the Court of Exchequer, and they are hereby required, to hear such petition in a summary way, and upon affidavits or such other evidence as shall be produced upon such hearing to determine the same, and to make such order therein and with respect to the costs of such applications as to him or them shall seem just " (x). Sect. 2 provides "that every petition so to be preferred as aforesaid shall be signed by the persons preferring the same, in the presence of and shall be attested by the solicitor or attorney con (r) 52 Geo. III. c. 101. (t) The jurisdiction is now vested in (u) The Equity jurisdiction of the Court of Exchequer is abolished. (x) This section contained a provision with regard to appeals to the House of Lords which was repealed by the Stat. Law Rev. Act, 1881. cerned for such petitioners, and every such petition shall be submitted to and be allowed by his Majesty's Attorney or SolicitorGeneral, and such allowance shall be certified by him before any such petition shall be presented." Sect. 3 provides "that neither the petitions, nor any proceedings Sect. 3. upon the same or relative thereto, nor the copies of any such petitions or proceedings, shall be subject or liable to the payment of any stamp duty whatever." The operation of Romilly's Act is confined to cases arising Operation. between the trustees of a charity and their cestuis que trust, and even in cases within the Act the Court has a discretion to determine whether the Act can be applied with advantage to the charity or not (y). In Att.-Gen. v. Bishop of Worcester (z), Turner, V.-C., made the following observations: "The terms of the Act are most general. It creates the summary jurisdiction in all cases of breach of trust, or supposed breach of trust, and in all cases where the order or direction of the Court shall be deemed necessary for the administration of any trust for charitable purposes; but the decisions, I think, have settled that it does not apply between the trustees and strangers, that it applies only between the trustees and the objects of the trust; and that it is in the discretion of the Court to what extent it ought as between them to be applied. The cases do not, I think, enable any fixed rule to be laid down by which the Court can be governed in the exercise of that discretion. Lord Cottenham, in The Tiverton School Case (a), is reported to have said that the Act ought not to be applied in cases where the Court sees that the jurisdiction given by it cannot be exercised with justice to any parties, or with benefit to the charity; and it appears that he considered that case not to be proper for the exercise of the jurisdiction, as it involved extensive and fundamental questions as to the principles on which the charity was to be administered (¿). But these rules still leave it to be considered by the Court in each case whether the Act can be applied with justice and benefit; and what are the extensive and fundamental questions of principle which ought to exclude its application. Perhaps the rule might (y) Re Manchester New College, 16 Beav. 610, 617; and see Re Lawford Charity, 2 Mer. 453; Ex parte Rees, 3 V. & B. 10; Re Dean Clarke's Charity, 8 Sim. 34; Att.-Gen. v. Earl of Devon, 15 Sim. at p. 259. The application of the Act was very much cut down by early decisions. For an example of the hostility with which it was received by contemporary judges, see the observa- (*) 9 Hare, at p. 357. (a) Att.-Gen. v. Earl of Devon, 15 Sim. at p. 259. (b) Ibid. at p. 262. |