to the dean and canons to render accounts. It was held by Hall, V.-C., that the relief asked, being in respect of a charitable fund which the Ecclesiastical Commissioners had to administer, and with which, as soon as it was paid to the commissioners, the dean and canons had no further concern, the case was not within sect. 62, and the consent of the Charity Commissioners was necessary.

By the express words of this section there are excluded from its operation: (1) applications "in any suit or matter actually pending," and (2) any proceedings "in which any person shall claim any property or seek any relief adversely to any charity."

The question as to what are proceedings adverse to a charity is dealt with in note (g) to the present section, post.

"Suit or matter actually pending," means pending at the time of the application, not of the passing of the Act: Re Lister's Hospital, 6 De G. M. & G. at p. 187.

When a final order has been made on a petition, it is no longer a matter "actually pending." Thus, the consent of the commissioners was required to a petition for the appointment of new trustees under a scheme ordered and settled by the Court upon a previous petition: Re Jarvis' Charity, 1 Dr. & Sm. 97; and see Re Duncan, L. R. 2 Ch. 356.

So where a case had been before the Court under Romilly's Act, and an order made by which a scheme was approved, and the trustees directed to make certain payments out of the funds, and to invest the residue, it was held that a petition for the erection of a new school with part of the charity funds, required the sanction of the commissioners. "It appears to me," said Kindersley, V.-C., "that this is one which must be considered as a new application of a part of the charity funds, and the spirit of the Act appears to me to be this, that if the intended application to the Court is for a new application of the charity funds, it should not be made except under the sanction of the commissioners. If in this case the application had been merely to add new rooms to an existing school, it might not perhaps have been necessary to obtain the commissioners' sanction:" Re Ford's Charity, 3 Dr. 324. See also Re Lister's Hospital, 6 De G. M. & G. 184.

The certificate of the commissioners is not necessary to enable trustees to pay a charitable fund into Court under the Trustee Relief Act: Re St. Giles, &c. Volunteer Corps, 25 Beav. 313; Re Poplar and Blackwall Free School, 8 Ch. D. at p. 546.

And where a fund has been so paid into Court, the Court may proceed to give directions as to its investment and so forth, without the certificate of the Charity Commissioners: Re St. Giles, &c. Volunteer Corps, supra.

The earlier case of Re Markwell's Legacy, 17 Beav. 618, which decided the contrary, was overruled by Re Lister's Hospital, cited infra: see Re St. Giles, &c. Volunteer Corps, supra.

In Re St. Giles, &c. Volunteer Corps, supra, a scheme was directed with regard to the money in Court. It may, perhaps, be doubted whether this did not go beyond Re Lister's Hospital, infra, inasmuch as it was not confined to giving directions necessarily supplemental to the payment into Court, but dealt with the charity quá charity.

In Re Poplar and Blackwall Free School, 8 Ch. D. 543, it was held that administration of charitable funds without the consent of the commissioners could not be obtained by the trustees paying the fund into Court and then

presenting a petition for its administration, for by the payment into Court the trustees were discharged from their office. They were accordingly not allowed the costs of the petition: and see ante, p. 233.

Sect. 17 (a)—(d).

Payment into
Court under

Lands Clauses

Similarly, the certificate of the Charity Commissioners is not required to enable a railway or other company which has purchased charity lands under the Lands Clauses Consolidation Act, 1845 (8 Vict. c. 18), to pay the pur- Act. chase-money into Court under that Act. Applications for the investment of moneys so paid in may be made without Investment. the certificate of the commissioners: Re Cheshunt College, 1 Jur. N. S. 995, where the money was applied in enfranchising copyholds; Re Lister's Hospital, 6 De G. M. & G. 184 (by which the earlier cases of Re L. B. & S. C. Ry. Co., 18 Beav. 608, and Re Sheat's Charity, 25 L. J. Ch. 49, were overruled), and Re William of Kyngeston's Charity, 30 W. R. 78, in both of which cases the money was applied in purchasing other lands; Re St. Pancras Burial Ground, L. R. 3 Eq. 173. See also Re Rehoboth Chapel, L. R. 19 Eq. 180; Re Faversham Charities, 10 W. R. 291; and Ex parte Governors, &c. of Norfolk Clergy, W. N. 1882, 53.

In the case of Re Lister's Hospital, supra, it was held by the Court of Appeal Re Lister's in Chancery that the assent of the Charity Commissioners was not necessary to Hospital. an application for the disposal of money paid into Court by a railway company for the purchase of land belonging to the charity. Lord Cranworth, C., in giving judgment, said (at p. 187), "By any suit or matter actually pending,' is meant pending at the time of the application, not pending at the passing of the Act. In the present case, the matter being before the Court by the payment of the money, the petitioners were entitled to make an application for its investment, and to have the order which they ask."

The difficult cases relating to applications for payment out to persons Payment out. becoming absolutely entitled are dealt with ante, pp. 281, 282.

So far as the present section is concerned the consent of the Charity Commissioners to such applications is not required, for they are as much applications "in a suit or matter actually pending" as applications for investment are: see Re Lister's Hospital, supra, where the petition asked in part for payment out. See also Ex parte Trustees of Tid St. Giles' Charity, 17 W. R. 758; Re Spurstowe's Charity, L. R. 18 Eq. 279.

The sanction of the Charity Commissioners is, however, required in these cases for another reason, which is, that charity trustees, certainly where they have no power of sale, and probably where they have a power of sale, are not persons absolutely entitled under sect. 69 of the Lands Clauses Act: see cases cited ante, p. 281, n. (m).

(b) As to this exception, see the last note.

(c) For the meaning of "charity," see sect. 66 of this Act, post, p. 531, and Meaning of sect. 48 of the Charit. Trusts Amend. Act, 1855, post, p. 557.

charity.

As to the power of a majority of trustees to institute proceedings when Power of authorized by the Board, see Charit. Trusts Act, 1869, s. 13, post. (d) Where the case is one for which the certificate of the Charity Commissioners is required, the Court has no jurisdiction to hear it without such certificate, and no assent by any of the parties can give jurisdiction: Glen v. Gregg, 21 Ch. D. at p. 518, per Jessel, M. R.

Accordingly, the certificate cannot be dispensed with because the case is of a pressing nature: Ex parte Watford Burial Board, 2 Jur. N. S. 1045; Thomas v. Harford, 48 L. T. N. S. 262. In the latter case, an interim injunc

majority of trustees to act. Certificate cannot be dispensed with.

Sect. 17 (d)-(g). Formal certificate required.

Nature of certificate required.

Certificate must be pleaded.

Stay of proceedings.

Form of application.

Claiming adversely to charity.

Opinion of

Jessel, M. R.

Saving for the
Attorney-
General
acting ex

officio (a).

tion to restrain interference with ancient lights was refused because the formal certificate of the commissioners had not been obtained.

Nor is anything short of the formal certificate of the Charity Commissioners sufficient. A letter signed by the secretary of the commissioners to the effect that the commissioners are prepared to issue their certificate, and that it will be issued in due course, is not sufficient, even though the matter be of a pressing character: Thomas v. Harford, supra.

The certificate required is, not that the commissioners approve of the application being granted, but only that they approve of its being made: Ex parte Watford Burial Board, 2 Jur. N. S. 1045.

It appears that the fact that the certificate of the commissioners has been obtained should be pleaded. In the absence of such an allegation the pleading was, under the old practice, demurrable: Braund v. Earl of Devon, L. R. 3 Ch. 800. And now the course prescribed in lieu of demurrer may be taken: R. S. C. 1883, Ord. XXV.

Where an action has been commenced without the necessary certificate, an order to stay all further proceedings may be obtained by the defendants: Hodgson v. Forster, W. N. 1877, 74.

A form of application for a certificate authorizing the institution of proceedings will be found in App. II. Charity Commission Forms, No. 5, post. (e) Or any officer of the Board for the time being authorized to act on behalf of the secretary: Charit. Trusts Act, 1887, s. 3, post.

(f) Now the High Court of Justice: see Jud. Act, 1873, sect. 34, sub-s. (3). (9) With regard to what is meant by claiming adversely to a charity, see Brittain v. Overton, 25 Ch. D. 41, n., and Benthall v. Earl of Kilmorey, 25 Ch. D. 39.

It appears from those cases that where the claim raised is really to participate in the funds of the charity it cannot be an adverse claim. Thus, in Brittain v. Overton, supra, a claim by a schoolmaster to have charity funds paid to him, and in Benthall v. Earl of Kilmorey, supra, a claim by a resident medical officer of a hospital established by a trust deed, were held not to be claims adverse to the charities.

It was said by Jessel, M. R., in Brittain v. Overton, supra (at p. 43, n.), "That (i.e., the proviso to the present section) obviously refers to a case in which, pending a Chancery suit, you might by petition, which was the proper mode, claim pro interesse suo, or where you might take a proceeding in equity where you could not bring an action at law. For instance, the legal estate might be outstanding, or you might claim money by suit in equity, on the ground that it was the proceeds of land not well given to the charity. "Those things are the subjects of relief adversely to the charity, that is, you do not claim under the charity trusts, alleging that the claim is for property not affected by the charity trusts. That is what I understand by claiming adversely to the charity." See also Re Sir Robert Peel's School at Tamworth, L. R. 2 Ch. 543, cited in note (a) to sect. 15 of this Act, ante, p. 474.

18. Provided always, that it shall be lawful for her Majesty's Attorney-General acting ex officio to make such applications, and take and prosecute such proceedings with respect to any charity, in the Court of Chancery (b)

or otherwise as to him may seem fit, as if this Act had Sect. 18. not been passed; and that nothing in this Act contained shall be construed as dispensing with the fiat or allowance of her Majesty's Attorney-General, with respect to any proceeding not being an application under the jurisdiction created by this Act where such fiat or allowance was necessary before the passing of this Act (c).

(a) As to the power of the Attorney-General to institute proceedings Ex officio ex officio, see ante, pp. 89, 315 et seq. proceedings.

By sect. 43 of this Act, post, p. 507, the Attorney-General acting ex officio

is authorized to petition under Romilly's Act.

(b) Now the Chancery Division of the High Court: Jud. Act, 1873, ss. 16, 34, sub-s. (3).

(c) The fiat of the Attorney-General is required to actions in the nature of Fiat of Attorney. informations (ante, pp. 315, 317, n. (a)), and also to petitions presented General. under Romilly's Act and other Acts: ante, pp. 332, 336.

report of an

authorize

and may in

cause local

their in

19. Provided also, that where upon any report of any Board may, inspector (a) under this Act or otherwise it appears to the upon the said Board (b) that any suit, petition, or other proceeding inspector, &c., concerning or relating to any charity, or the estate, proceedings, funds, property, or income thereof, would be proper or other cases expedient, it shall be lawful for the said Board by their inquiries by order to authorize or direct such suit, petition, or pro- spector. ceeding to be commenced, presented, or taken, and to give such directions in relation thereto as the said Board may think proper; and thereupon such suit, petition, or proceeding may be commenced, presented, or taken accordingly, without any such previous notice in writing as hereinbefore mentioned (c); and the said Board, before giving any such opinion, advice, or direction upon any such application as aforesaid, or making any such order or certificate after notice to them as aforesaid, may, where local inquiry appears to them to be requisite, cause such inquiry to be made by one of their inspectors (a); and the said Board may, in any case where they see fit, before acting upon the report of any inspector (a), cause such report to be deposited for local inspection, and give notice of the same being so deposited,

Sect. 19. and consider any statements or objections which transmitted to them in relation thereto.

Board may certify certain cases to the AttorneyGeneral (a).

Board may sanction the granting of

may be

(a) Now "assistant commissioner": see sect. 2, sub-s. (3) of the Charit. Trusts Act, 1887, post.

(b) Defined by sect. 66, post, to mean the Charity Commissioners sitting as a Board under this Act: see sect. 6, ante.

(c) See sect. 17, ante.

20. In any case in which it shall appear to the said Board that the institution of legal proceedings is requisite or desirable with respect to any charity, or the estates, funds, property, or affairs thereof, and that under the circumstances thereof it is desirable that such proceedings should be instituted by the Attorney-General, it shall be lawful for the said Board, if they so think fit, to certify such case, in writing under the hand of the secretary (b) of the said Board, to her Majesty's AttorneyGeneral, together with such statements and particulars (if any) as in the opinion of the said Board may be requisite or proper for the explanation of such case; and thereupon the said Attorney-General, if upon consideration of the circumstances he think fit, shall institute and prosecute such legal proceedings as he shall consider requisite or proper under the circumstances of such case, by information (c) or petition in the Court of Chancery (d), or by application to a judge thereof at chambers, or to a District Court of Bankruptcy (e), or County Court, under the jurisdiction given by this Act (f).

(a) The Attorney-General does not usually initiate charity proceedings except upon a case certified to him under this section: see ante, pp. 475, 476. (b) Or any officer authorized by order of the Board to act on behalf of the secretary: Charit. Trusts Act, 1887, s. 3, post.

(c) Now action: R. S. C. 1883, Ord. I. r. 1; Att.-Gen. v. Shrewsbury Bridge Co., W. N. 1880, 23; see ante, pp. 315 et seq.

(d) Now the Chancery Division of the High Court: Jud. Act, 1873, ss. 16, 34, sub-s. (3). As to petitions, see ante, pp. 328 et seq.

(e) The words in italics were repealed by the Stat. Law Rev. Act, 1875, District Courts of Bankruptcy having been abolished by the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), s. 130.

(f) Sects. 28, 29, 32, 37, post.

21. If in any case it appear to the trustees or persons for the time being acting in the administration or