Petitions under the Grammar Schools Act should be served on the patron and head master of the school (u). c. 70. The procedure under Romilly's Act was also adopted in 8 & 9 8 & 9 Vict. Vict. c. 70, which provides for the apportionment of charities on the formation of new districts for churches (x). Sometimes petitions may be presented under Acts regulating Special Acts. particular charities (y). Where a private Act authorized "any person or persons whom- Petitioners soever" to present a petition relating to a charity, it was held to must have mean only persons who had an interest in the funds (z). interest in charity. cannot be tions. Where the jurisdiction given under a particular Act and that Petition given by Romilly's Act differ, a petition cannot proceed upon an presented in allegation that the petitioners are entitled to relief, either under two jurisdicthe Act relative to the particular charity, or under the general Act, or under both those Acts. This was attempted in the Bedford Charity Case (a), but Lord Eldon said: "The petitioners must choose on which Act they will proceed, and for this reason: under the particular Act the judgment of the Lord Chancellor is final; under Sir Samuel Romilly's Act it is subject to appeal: the Court, therefore, cannot proceed on both Acts; the judgment cannot be both final and not final. I cannot give judgment in two jurisdictions." entitled. Petitions presented under the Grammar Schools Act, or under Petitions how 8 & 9 Vict. c. 70, should be entitled in the matter of 52 Geo. III. c. 101, as well as in the matter of the Grammar Schools Act, or 8 & 9 Vict. c. 70 (b). in place of So also it was held that petitions for filling up vacancies in the Petitions for number of trustees of charities formerly vested in Municipal Cor- new trustees. porations required to be entitled in 52 Geo. III. c. 101, as well as municipal corporation. in the Municipal Corporations Act of 1835 (c). In some cases they have also been entitled in the Trustee Act, 1850 (d). A petition for the appointment of new trustees under the Trustee Trustee Act, Act, 1850, similarly requires to be entitled under 52 Geo. III. 1850. c. 101, as well as under the Trustee Act, (u) Re Marlborough Grammar School, 7 Jur. 1047. (x) See ante, pp. 173 et seq. (y) See Shelf. Mortm. 508, and stat. 39 Geo. III., as to the Free Grammar School of Wotton-under-Edge, stated ibid. p. 511. (z) Re Bedford Charity, 2 Swanst. at p. 525. (a) 2 Swanst. 470, 518. (b) Re West Ham Charities, 2 De G. & Sm. at p. 222. (c) Re Warwick Charities, 1 Ph. 559; Att.-Gen. v. Mayor of Exeter, 2 De G. M. & G. 507; Bignold v. Springfield, 7 1850 (e), unless it is Cl. & F. 71. The Municip. Corp. Act, (d) Re Gloucester Charities, 10 Hare, (e) Re Rolle's Charity, 3 De G. M. & Lands Clauses Petition under presented in a pending action for the regulation of the charity (even though all proceedings have been stayed), when it is sufficient to entitle it in the action and in the Trustee Act, 1850 (ƒ). It has been held that a petition for the investment of funds in Court under the Lands Clauses Consolidation Act, 1845 (g), should be entitled in Romilly's Act (h). A petition directed by the judge in chambers, under sect. 28 of Charit. Trusts the Charitable Trusts Act, 1853 (i), for appointing new trustees, should be entitled in the matter of the Charitable Trusts Act, 1853, and in the matter of the Trustee Act, 1850, but need not be entitled in Romilly's Act (k). Act, 1853, 8. 28. Fiat of Sanction of Charity Commissioners. Local notice of appointment of trustees. Petitions entitled in Romilly's Act, although entitled also in some other Act, must receive the fiat of the Attorney-General, and be prepared and presented in compliance with the requirements of Romilly's Act (1). When the petition is presented in an action the fiat of the Attorney-General is not necessary, it being a matter within the discretion of the Court whether it will be required or not (m). Petitions relating to charities within the jurisdiction of the Charity Commissioners (n), unless presented in "a suit or matter actually pending," require the sanction of the Charity Commissioners (o). A petition for the appointment of new trustees presented under a scheme settled upon a previous petition is not an application in a suit or matter actually pending," and therefore requires the certificate of the Commissioners (o). But such a petition presented in a pending action does not (p). In Re Gloucester Charities (q), Wood, V.-C., said that formerly applications were made for the appointment of new trustees, and In some cases this has not been required: (f) Att.-Gen. v. Cooper, 8 Jur. N. S. (g) 8 & 9 Vict. c. 18. (h) Re L. B. & S. C. Ry. Co., 18 Beav. 608. Ph. 559. (m) Att.-Gen. v. Cooper, supra. (n) See the definition of charity in sect. 66 of the Charit. Trusts Act, 1853, and n. (c) to that section, post; and as to what charities are exempted from the application of the Acts, see sect. 62 of the Charit. Trusts Act, 1853, and notes thereto, post. See Re Jarvis' Charity, 1 Dr. & Sm. 97; Re Duncan, L. R. 2 Ch. 356; and note (a) to sect. 17 of the Charit. Trusts Act, 1853, post. See (0) Re Jarvis' Charity, supra. also Re Bingley Free School, 2 Dr. 283; Re Ford's Charity, 3 ibid. 324. (p) Att.-Gen. v. Cooper, supra. (9) 10 Hare, App. iii. See also Re Lancaster Charities, 7 Jur. N. S. 96. Cf. the practice of the Charity Commissioners, sect. 6 of the Charit. Trusts Act, 1860, and note (c) thereto, post. the order for the appointment was made, without any communication with the persons locally interested in the charities. This often occasioned great dissatisfaction, and sometimes led to litigation for the purpose of removing persons who were objected to, and had been so appointed. The Attorney-General, to obviate this inconvenience, had adopted the rule of requiring notices of application for the appointment of new trustees of municipal charities to be published and made known in the town, in order that other persons might have the opportunity of giving any information or suggestion with regard to the propriety of the proposed appointments. Where the fiat of the Attorney-General approving of certain Fiat of persons as trustees of a charity is issued with full knowledge of all Att.-Gen. matters in dispute before him, and no objection is taken to its issue, the Court appoints the persons approved by him (). and sugges Persons furnishing information or suggestions must do so Information gratuitously, and will not be allowed costs out of the charity tions gra funds (8). tuitous. at Chambers. The jurisdiction at chambers is founded on sect. 28 of the Charit- Jurisdiction able Trusts Act, 1853 (t). By that section, where the appointment or removal of any Charit. Trusts Act, 1853, trustee, or any other relief, order, or direction relating to any charity, , s. 28. of which the gross annual income for the time being exceeds 307., is considered desirable, and such appointment, removal, or other relief, order, or direction might have been made or given by the Court of Chancery or the Lord Chancellor, intrusted with the care and commitment of the custody of lunatics, any person authorised by order or certificate of the Board of Charity Commissioners, or the Attorney-General (u), may apply to a judge at chambers for such order, direction, or relief as the nature of the case may require; and the judge may proceed upon and dispose of the application in chambers, save where he may think fit otherwise to direct, and has such jurisdiction, and may make such orders and give such directions as might have been exercised, made, or given by the Court of Chancery or the Lord Chancellor intrusted as aforesaid, in a suit regularly instituted or upon petition. The jurisdiction created by the above section is now vested in Transfer of the Chancery Division of the High Court of Justice (x). jurisdiction to Chancery Division. The section confers on the judge at chambers the same powers jurisdiction. which could previously have been exercised in a suit regularly Extent of Determining existence of charity. Adverse claims. Orders made in chambers. Mode of procedure. instituted or on petition (y). There is jurisdiction under the section to decide the question whether the property to which the summons relates is held upon a charitable trust or not (z). The jurisdiction at chambers does not extend to trying titles as between any charity or the trustee thereof and any person claiming adversely to the charity, or to determine any question as to the existence or extent of any charge or trust (a). The orders which may be made under this section include orders for the appointment and removal of trustees (b), vesting orders (c), orders vesting charity land in the official trustee of charity lands (d), orders for schemes (e) for leave to transfer stock to or deposit securities with or for payment of money to the official trustees of charitable funds, and for investment and payment of dividends (f). The application is by originating summons (g). The summons should be entitled in the matter of the charity as described in the certificate authorising the application, and also in the matter of the Charitable Trusts Acts and of any other special Acts, such as the Trustee Acts, conferring jurisdiction in the particular case; and it should state the precise object of the application (h). Except where the application is made by the Attorney-General acting ex officio, a copy of the certificate of the Charity Commissioners authorising the application, verified by a certificate of the applicant's solicitor (i), must be left at the judge's chambers at the time the summons is issued (k). And a written authority from the applicant should be filed by his solicitor at the time of sealing the summons and filing the (y) Re Davenport's Charity, 4 De G. M. & G. 839. (z) Re Norwich Town Close Estate Charity, 40 Ch. D. 298. (a) Charit. Trusts Act, 1853, s. 41, post. See Re Norwich Town Close Estate Charity, supra, at pp. 309, 310. (b) See also R. S. C. 1883, Ord. LV. r. 13. (c) Re Davenport's Charity, supra; Re Lincoln Primitive Methodist Chapel, 1 Jur. N. S. 1011. And see ante, p. 185. (d) Re Titchmarsh, Set. 4th ed. p. 569; Re Westfield's Charity, ibid.; Re Beckenham Charity, ibid.; Re Saffron Walden Charity, ibid. (e) Re Sion Hospital, Set. 4th ed. p. 569; Re Charitable Gifts for Prisoners, L. R. 8 Ch. 199. And see n. (a) to sect. 28 of the Charit. Trusts Act, 1853, post. (f) Set. 4th ed. pp. 569-571; Re Wharton's Charities, ibid. p. 570; Re Reigate Charities, ibid.; Re Orsley's Charity, ibid. p. 571; Re Cranbourn Schools, ibid. See also n. (a) to sect. 28 of Charit. Trusts Act, 1853, post. (g) R. S. C. 1883, Ord. LV. r. 13; Dan. Forms, 4th ed. p. 880, where forms of summonses are given. For forms of orders, see Set. 4th ed. pp. 550 and 568 seq. (h) Dan. C. P. 6th ed. 2019. () For form of this certificate, see Dan. Forms, 4th ed. p. 880. (k) Dan. C. P. 6th ed. 2049. duplicate. The solicitor should also file a certificate by himself that the applicant is able to pay costs (7). The summons, when not taken out by the Attorney-General, Service. must be served upon the solicitors of the Attorney-General on his behalf, except where the summons merely asks for the appointment of trustees or a vesting order, or an order for the transfer of stock consequent on a vesting order (m); and, as a rule, the summons must be served on all persons whose interests are affected (n). By sect. 42 of the Charitable Trusts Act, 1853 (o), notice of an Notice of application for the establishment or alteration of a scheme, or the application. appointment or removal of a trustee, must be given, in writing, in such form and manner as the Charity Commissioners may direct; and if the order is that the notice is to be affixed to the door of a parish or district church, the incumbent and churchwardens must allow the notice to remain so affixed during such period, not less than fifteen days, as the Charity Commissioners may have ordered; and evidence that the notice has been so affixed is primâ facie evidence that it has remained affixed during the period prescribed. The judge at chambers may, if he think fit, direct proceedings Judge may to be taken by action or petition, and may abstain from further proceedings on the summons (p). direct action or petition. By the Roman Catholic Charities Act, 1860 (q), the jurisdiction Apportionat chambers conferred by sect. 28 of the Charitable Trusts Act, ment of 1853 (), is extended to the apportionment of Roman Catholic Catholic charities partly applicable to superstitious uses, and the application of such last-mentioned part to lawful charitable trusts. Roman charities. During the continuance of the power of making schemes under Endowed the Endowed Schools Acts, no Court or judge can, with respect to schools, &c. an endowed school or educational endowment which can be dealt with by a scheme under those Acts, make a scheme or appoint new trustees without the consent of the Committee of Council on Education ($). London In the case of charities established, or administered, or applicable City of to or for objects or purposes within the City of London, orders, charities. which in the case of other charities could only have been made if the gross annual income of the charity exceeded 307., can be made (1) Dan. C. P. 6th ed. 2049, 2050, where it is stated that the latter practice is not now adhered to. (m) Ibid. 2050. (n) Ibid. (0) Post. (p) Charit. Trusts Act, 1853, s. 28, post. (a) 23 & 24 Vict. c. 134, s. 1, post. (1) See ante, p. 337. (s) End. Schools Act, 1874, s. 6, post. |