Where inapplicable. Where applicable. well be laid down that the Act at all events may safely be resorted to in all cases where the objects of the charity have no distinct interests, and where, therefore, the Attorney-General properly represents them all; and in all cases where, although there may be distinct interests, no substantial question of principle can arise between the several objects" (c). The Act has been held not to apply to cases where there are constructive trusts (d), or where the circumstances are complicated (e), or where it is doubtful in whom the legal estate is vested (f), or where there are adverse claims or disputes as to who are the objects of the charity (g), or whether certain persons called governors or trustees have a certain authority (h), or where persons put in adverse claims to the right to administer the charity property (i), or where there are adverse claims to land (k). Nor can the Court determine under this Act the validity of an appointment of trustees (1), or whether trustees have power to alter the regulations of a school (m). Nor can it add to the number of trustees limited by the foundation (n), or transfer the funds of a dispensary to a hospital and amalgamate the two institutions (0), or set aside a lease of charity property (p). And there is no power under the Act to repair a previous misapplication of trust funds (q), or direct accounts of estates of persons who have received the rents of charity estates (r). Where a petition was presented by trustees appointed in pursuance of the Municipal Corporations Act, 1835 (s), asking to have their powers and duties declared and proper directions given for the management of the charity, it was held that there was no jurisdiction (t). The Court has, however, adjudicated on petition under this Act between the conflicting claims of different charities where the (c) See also per Romilly, M. R., in Re Manchester New Coll., 16 Beav. at p. 617. (d) Re Norris' Charity, G. Coop. 295; Re Lawford Charity, 2 Mer. 453. (e) Corporation of Ludlow v. Greenhouse, 1 Bli. N. S. 17; Re Suir, &c. School, 3 J. & Lat. 171. (f) Re Phillipott's Charity, 8 Sim. 381; Re Olney Charities, 11 Jur. 420. (g) Re Dean Clarke's Charity, 8 Sim. 34; Re Bedford Charity, 5 Sim. 578; Re Magdalen Land Charity, 9 Hare, 624. (h) Att.-Gen. v. Corporation of Bristol, 14 Sim. 648. (i) Re West Retford Church Lands, 10 Sim. 101, 108. (k) Ex parte Rees, 3 V. & B. 10; Re Norris' Charity, G. Coop. 295. (1) Re Phillipott's Charity, 8 Sim. 381. (m) Att.-Gen. v. Eust Retford Grammar School, 17 L. J. Ch. 450. (n) Re Storey's Almshouses, 9 L. J. Ch. 93. (0) Re Reading Dispensary, 10 Sim. 118. (p) Re Lawford Charity, 2 Mer. 453; Re Norris' Charity, supra. (g) Re Hall's Charity, 14 Beav. 115; and see cases collected ibid. 120, n. (r) Re St. Wenn's Charity, 2 S. & S 66. (s) 5 & 6 Will. IV. c. 76. See ante, pp. 197 et seq. (1) Re Newark Charities, 6 L. J. Ch. 215. question depended simply upon the construction of a particular instrument (u). There is also jurisdiction to give directions for the sale (r), or exchange (y), of charity property if obviously beneficial; to consider a scheme for the management of a grammar school (≈), or of a charity estate (a); to alter a scheme and decide as to the site of a charity (b), or to direct the application of the funds cy-près (c), and to ascertain whether an Act of Parliament should be applied for to regulate the charity (d). The Court has also under the Act power to appoint new trustees (e), to reinstate a schoolmaster if improperly dismissed (f), to regulate the internal management of a school (g), to set aside an election to a scholarship (h), or to declare the proportions in which the charitable objects are entitled (i). The Court has, however, a discretion to decline to make an Jurisdiction discretionary. order upon a petition under the Act, and to require the parties to proceed by action (k). The petition, unless presented by the Attorney-General acting Who may be ex officio, must be presented by two or more persons (1), and a petitioners. corporation is not a person within the meaning of the Act (m). The petitioners must have a direct interest in the charity (n), and must prove that they possess such interest (o). A petition cannot be presented by a governing body which is not duly constituted (p). (u) Re Parish of Upton Warren, 1 My. & K. 410. See, however, Re Dean Clarke's Charity, 8 Sim. at p. 42. (x) Re Parke's Charity, 12 Sim. 329; Re Overseers of Ecclesall, 16 Beav. 297; Cullen v. O'Meara, Ir. R. 1 C. L. 640; Re Ashton Charity, 22 Beav. 288; Re Congregational Church, Smethwick, W. N. 1866, 196; contra, Re Lydford's Charity, 16 Beav. 297, n.; Re Suir Island, &c. School, 3 J. & Lat. 171; and see ante, p. 250. (y) Mildmay v. Lord Methuen, cited 14 Beav. 121, n., per Lord Cranworth; Re Newton's Charity, 12 Jur. 1011. (z) Re Rugby School, 1 Beav. 457; Re Royston Free Grammar School, 2 Beav. 228. (a) Ex parte Berkhampstead Free School, 2 V. & B. 134; Re Chertsey Market, 6 Price, 261; Re Shrewsbury Grammar School, 1 Mac. & G. 324. (b) Re Manchester New Coll., 16 Beav. 610. (c)_Re_Lady Belvedere's Charity, 2 Ir. Eq. R. 354. (d) Re Shrewsbury Grammar School, supra. (e) Bignold v. Springfield, 7 Cl. & F. 71; and see Re Peyton's Hospital, 8 Beav. 70. (f) Re Phillips' Charity, 9 Jur. 959; (g) Re Rugby School, 1 Beav. 457. 434. (i) Re Hall's Charity, 14 Beav. 115. (k) Per Lord Cottenham, in Att.-Gen. v. Earl of Devon, 15 Sim. at pp. 259, 261; Ex parte Rees, 3 V. & B. 10; and see Corporation of Ludlow v. Greenhouse, 1 Bli. N. S. 17, 66. (1) Sect. 1, ante, p. 328; Re Garstang, &c. School, 7 L. J. (O. S.) Ch. 169. (m) Re L. B. & S. C. Ry. Co., 18 Beav. 608. (n) Re Bedford Charity, 2 Swanst.. at p. 518. (0) Corporation of Ludlow v. Greenhouse, 1 Bli. N. S. at p. 91. (p) Hamilton v. Spottiswood, 15 W. R. 118. Allowance of Petition, how to be signed, attested, &c. Presentation of petition. Non-com forms. Before a petition can be presented it must be submitted to and allowed by the Attorney or Solicitor-General, and the allowance must be certified by him (g). It appears that the SolicitorGeneral can only act during the vacancy of the office of AttorneyGeneral (). An order made upon a petition not signed by the AttorneyGeneral is a nullity (8). The Court has, however, been in the habit of receiving petitions without the allowance of the Attorney-General upon matters arising out of or having reference to what the Court has before done upon a petition properly signed by him (t). Before the allowance of the Attorney-General can be obtained the petition must be signed by the petitioners, in the presence of their solicitor, and their signatures attested by him. A certificate should also be written on the petition and signed by the counsel who prepared it, to the effect that in his opinion the petition is one proper to be presented under the Act. The solicitor for the petitioners must also certify on the petition that the petitioners are able to answer the costs of the application. Upon the petition so signed and certified being left with the Attorney-General's clerk, he will obtain the Attorney-General's signature thereto in testimony of his approbation (u). The petition is addressed to the High Court of Justice and presented in the usual way (v); and the sanction of the Charity Commissioners is usually required (x). Where an order had been made upon a petition which had been pliance with irregularly presented and did not comply with the provisions of the Act, the petition was ordered to be taken off the file, and the order made upon it was discharged on motion (y). Att.-Gen. may apply under Romilly's Act. Service of petition. By the Charitable Trusts Act, 1853 (z), the Attorney-General, acting ex officio, is empowered to present petitions, under 52 Geo. III. c. 101, or under any Act authorizing an application by petition, according to the provisions of the said Act. As a rule, the petition should be served upon all persons whose interests will be affected by the order sought to be obtained (a); and it is an objection to the petition that there is no respondent (b). officers. As there is no jurisdiction under the Act to make a parish Parish responsible for arrears of charity revenues applied to parochial purposes, the parish officers should not be made respondents for that purpose (c). Att.-Gen. Although a petition under Romilly's Act for the appointment Service on of new trustees requires the fiat of the Attorney-General, yet it need not be served upon him. If anything should occur to render his presence desirable, the Court will direct him to be served (d). A petition praying for the removal of charity trustees should be Service on served upon the trustees (e); and an application for the appointment of new trustees must be served on the surviving or continuing trustees (ƒ). trustees. corporation. In a petition for filling up vacancies in the number of trustees Service on appointed in place of a municipal corporation under the Municipal municipal Corporations Act, 1835, the corporation having no interest in the charity should not be respondents (g). Parties not served with the petition are strictly not entitled to Hearing be heard by counsel. Inasmuch, however, as it is discretionary parties not respondents. with the Court to make orders under the Act or not, and inasmuch as such orders ought not to be made in cases where the Court sees that the jurisdiction given by the Act cannot be exercised with justice to the parties or benefit to the charity, there may be cases where counsel for parties not served with the petition might be heard with advantage, for the purpose of enabling the Court to judge in what manner its discretion should be exercised (h). The petitioners and respondents have a right to attend at any Proceedings proceedings which may, upon the hearing of the petition, be directed subsequent to petition. to be taken in chambers (i). The Attorney-General ought to be a party to all inquiries and Att.-Gen. other proceedings in chambers, and any proceedings taken in his absence are irregular (j). The Attorney-General is always directed to be served with the summons to proceed on the order (k). (b) Ex parte Rees, 3 V. & B. 10. (c) Ex parte Fowlser, 1 J. & W. 70. (d) Re Warwick Charities, 1 Ph. 559. But in Re Oxford Charity, cited Set., 4th ed., ., p. 564, it was said that the AttorneyGeneral ought to be served. (e) Ex parte Seagears, 1 V. & B. 496. & Re Hereford Charities, & Jur. 289. (g) Re Shrewsbury Charities, 1 Mac. & G. 85. (h) See per Lord Cottenham in Att. Gen. v. Earl of Devon, 15 Sim. at p. 259. (j) Att.-Gen. v. Earl of Stamford, 1 (k) Re Hanson's Trust, 9 Hare, App. I. p. liv.; Set, 4th ed., pp. 551, 561; Dan. C. P., 6th ed., p. 2045. As to the practice upon summonses to proceed, see R. S. C. 1883, Ord. LV. rr. 32, 33. Proceedings The Attorney-General or other party served may carry out an abandoned by order when proceedings are abandoned by the originators (). petitioners. Applications Where an order has been obtained under the Act by petition, a subsequent to subsequent order may be made on motion (m). petition. Alteration of scheme. Information and petition. Petitions under other Acts. Grammar Thus where an order had been made for payment of a sum of money to a schoolmaster, a short order for payment was made upon motion (n). The Court has jurisdiction in an action to alter a scheme previously settled on petition (o). Conversely it can upon petition alter a scheme previously settled in an action (p). Where an information and a petition under the Act were proceeding together and included the same or part of the same objects, the Court referred it to the Attorney-General to consider which should proceed (q). But where an information had been filed and a petition subsequently presented having the same objects, the Court refused to give relief on the petition as to such of the objects as came within the limits of the petition, and to leave the rest to be disposed of on the information (r). The summary mode of procedure under Romilly's Act has been extended by various statutes to other cases relating to charities. The Grammar Schools Act (s), which confers powers upon Courts of Equity to extend the system of education and the right of admission into grammar schools, and to establish schemes for the application of their revenues, after reciting that it was expedient to facilitate applications to the Court of Chancery under the Act, enacts, "that all applications may be heard and determined and all powers given by this Act to the Court of Chancery may be exercised in cases brought before such Court by petition only, such petitions to be presented, heard, and determined according to the provisions" of 52 Geo. III. c. 101. It has been doubted whether there would be jurisdiction under the Grammar Schools Act to insert in a scheme for the management of a grammar school a provision for the appointment of a board of managers to act with the governors in administering the property and controlling the management of the school (†). (1) Re Bedford Charity, 29 L. T. 5. (n) Re Chipping Sodbury School, supra. (p) Att.-Gen. v. Bishop of Worcester, 9 Hare, 328. (a) Att.-Gen. v. Green, 1 J. & W. 303. (r) Re Lawford Charity, 2 Mer. 453. (s) 3 & 4 Vict. c. 77, s. 21, printed in App. I., post. (t) Re Chelmsford Grammar School, 1 K. & J. 543. |