7. The attorney general may proceed without a relator.] A relator is generally required in all proceedings by information, except where the rights of the crown are immediately concerned, for the purpose of securing costs, but the attorney general may, if he pleases, proceed without a relator (i), although it had been said, that an information to establish a charity without a relator, would not do (j). And Sir John Leach said, that before the passing of the stat. 59 Geo. III. c. 91, it was the settled practice of the Court of Chancery, that the attorney general could not proceed in an information respecting a charity without naming a relator, who might be answerable in costs to the defendant (k).

It was held in the House of Lords, that a fund, consisting of fees which were public money, might be the subject of an information by the attorney general alone (1).

By stat. 59 Geo. III. c. 91, it was enacted, that whenever upon any examination or investigation taken before the commissioners appointed under the statutes 58 Geo. III. c. 91, and 59 Geo. III. c. 81 (m), any case should arise or happen in which it should appear to the said commissioners, that the directions or orders of a court of equity were requisite for the remedying of any neglect, breach of trust, fraud, abuse, or misconduct in the management of any trust created for any of the charitable purposes thereinbefore mentioned; or of the estates or funds thereunto belonging, or for regulating the administration of any such trust, or of the estates or funds thereof; it should be lawful for the said commissioners or any five or more of them, if they should think fit, to certify the particulars of such case in writing under their hands to his majesty's attorney general, who was thereupon empowered, if he should so think fit, either by a summary

(i) 2 Swanst. 520; 1 Bligh. N.S. 337, 351. See Redesdale's Pl. 23, 4th ed.

Ashburnham, 1 Sim. & Stu. 396.

(1) Mucklow v. Attorney General, 4 Dow, 11, 15. See Hudson v.

(j) Attorney General v. Oglender, Mucklow, 12 East, 273.

1 Ves. Jun. 147.

(k) Attorney General v. Earl of

(m) Ante, pp. 305, 307, 308.

application in the nature of a petition, or by information, as the case might require, to apply to or commence a suit in the Court of Chancery, or Exchequer sitting as a court of equity; stating and setting forth the neglect, breach of trust, fraud, abuse, or misconduct, or other cause of complaint or application, and praying such relief as the nature of the case might require; when such petition or suit is instituted in the Court of Exchequer, that court is to decide the same; and the order or decree of the same court is to be final and conclusive, unless the parties thinking themselves aggrieved shall, within one year after such order or decree, appeal to the House of Lords: when such petition or suit is commenced in the Court of Chancery, the lord chancellor, lord keeper, or lords commissioners, for the custody of the great seal, are empowered and required to order such petition or suit to be determined either before the master of the rolls or vice chancellor, who are directed to hear and rehear, if to him it shall appear necessary, and to determine the same, and all decrees, orders, and acts of the master of the rolls and vice chancellor therein are to be deemed those of the Court of Chancery, subject to be reversed or altered by the lord chancellor, lord keeper, or lords commissioners, and no decree or order is to be enrolled until signed by him, or them. By the 2nd section it is enacted, that when any appeal shall be made to the lord chancellor, &c., from any order of the master of the rolls or vice-chancellor, no appeal from the order or decree of the lord chancellor, lord keeper, or lords commissioners, to the House of Lords, shall be allowed.

By 2 Will. IV. c. 57, the commissioners appointed under the 1 & 2 Will. IV. c. 34 (n), or any five or more of them, are authorised to make such certificates from time to time to the attorney general, as the commissioners appointed under the 58 & 59 Geo. III.; and thereupon such proceedings were to be had as were directed by the stat. 59 Geo. III. c. 91.

It was held that an information filed by the attorney gene

(n) Ante, pp. 309, 310.

ral, after the powers of the commissioners of charities had ceased, in pursuance of a certificate made by them while their authority was in force, could be carried on without a relator. For although the statutes under which the charity commissioners were appointed were only temporary, the correlative acts, authorising the attorney general to proceed upon their certificate, were permanent, and not confined within the same limits which circumscribed the powers of the commissioners. Therefore a motion by defendants, that an information filed by the attorney general might be taken off the file for irregularity, or all further proceedings stayed until a relator should be named, was refused, and the defendants were ordered to pay to the attorney general the costs of the application (o).

By stat. 5 & 6 Will. IV. c. 71, s. 18 (p), it is enacted, that in all cases of proceedings instituted, or to be instituted under the above acts, or of that act, the production to the court of a certificate under the hand of the attorney general, stating that the particulars have been certified to the attorney general for the time being, according to the provisions of the said recited acts of the 59 Geo. III. and the 2 Will. IV., or of the act of the 5 & 6 Will. IV. shall be deemed sufficient evidence that such particulars have been duly certified to the attorney general accordingly, for all the purposes whatever. By the 19th section of the 5 & 6 Will. IV. c. 71, the chief commissioner to be appointed in pursuance of that act, is directed to superintend all proceedings instituted or to be instituted by the attorney general, in pursuance of the above-mentioned acts, with a view to their prompt and effectual termination. By the 22nd section, the commissioners may direct informations to be filed by the attorney general before their reports are presented.

8 Of parties to informations.] Generally speaking, all persons interested in the subject of the suit ought to be par

(o) Attorney General v. Bullen, A, 1834, fo. 190. Rolls, 24th January, 1835, Reg. lib. (p) Ante, pp. 314–316.

ties (q), if within the jurisdiction of the court; but if any necessary parties are omitted, or unnecessary parties are inserted, the court upon application will usually allow the proper alterations to be made (r).

The ordinary practice, when one party is out of the jurisdiction, and other parties within it, is to charge the fact in the bill that such a person is out of the jurisdiction, and then the court proceeds against the other parties, notwithstanding the absent party is not before it. It cannot proceed to compel him to do any act; but it can proceed against the other parties, and if the disposition of the property is in the power of the other parties, the court may act upon it (s).

An information against trustees, praying accounts not only against them, but referring to a period when they were not acting trustees, would be defective for want of parties (t).

In an information to apply money given to a charity to other uses than those expressed in the will of the donor, the trustees must be parties (u). And it was held that the executor must be a party to an information, filed on behalf of a charity, for discovering the profits of lands for the satisfaction of a legacy charged thereon (v).

Where an information is filed for setting aside a lease of a charity estate, the lessee as well as the under-lessee, or his assignee of part of the premises, should be brought before the court (w).

The master of the school must be a party to an information brought for his benefit; as, to have the surplus rents of charity estates applied for his use (x).

(q) Pawlet v. Bishop of Lincoln, 2 Atk. 296; Poore v. Clark, Id. 515; 1 Ves. jun. 39; 7 Ves. 563; 1 Mer. 262; 3 Mer. 512.

(r) 1 Redesdale's Pl. 39, 4th ed. (s) Smith v. Hibernian Mine Comp. 1 Sch. & Lef. 240. See Attorney General v. Baliol College, 9 Mod. 429, 5th ed.; Wilkinson v. Beal, 5 Madd. 408; Williams v. Whinyates, 2 Br. C. C. 399.

(t) Attorney General v. Brown, 1

Swanst. 292; In re Chertsey Market, 6 Price, 278

(u) Attorney General v. Green, 2 Br. C. C. 492.

(v) Attorney General v. Twisden, Finch. 336.

(w) Attorney General v. Backhouse, 17 Ves. 288. See 1 Madd. 109; 1 Bligh, N. S. 73, 4; 93.

(x) Attorney General v. Smart, 1 Ves. sen. 72.

Where an information at the relation of the inhabitants of a parish was filed to have a schoolmaster dismissed for improper conduct, and to have the charity regulated, and no visitor was appointed by the founder, it was held that the heir of the founder should have been a party, although the court did not dismiss the information, but directed the master to make inquiries for the heir, and to receive a scheme for the regulation of the school (y). So the heir of the founder was considered a necessary party by the court on a question as to the right to the increased income of a charity estate; and the master was directed to inquire who was such heir (z).

Where lands had been given for the endowment of a school, and also lands for the foundation of scholarships in a college, for boys to be nominated by the master of the school, the master and fellows of the college had the appointment of a master to the school, and on their default for the space of two months, the Archbishop of York was to appoint, an information seeking an account both of the estates given for the school, and of those given for the scholarships, was held to be defective for want of parties, because the Archbishop of York had not been made a party (a).

Where a testator had given a residue to be laid out for the advancement of the Christian religion amongst infidels, and by a decree the rents of the charity estate had been directed to be applied in the advancement of the christian religion among infidels, as the Bishop of London for the time being should appoint; and he directed the rents to be paid to a college in Virginia, to educate in the Christian religion Indian children, as far as the fund would go; the college having been emancipated and become subject to a foreign power, the independent states of America: on an information and bill by the Bishop of London, to have the rents of the estate applied for the promotion of the Christian religion in England, it was held that the bishop had not sufficient interest to sus

(y) Attorney General v. Gaunt, 3 Swanst. 148, n.

(z) Attorney General v. Tonna, 4 Br. C. C. 177. See 1 Bligh, N. S. 55.

(a) Attorney General v. St. John's College, V. C. 19 Jan. 1835, 4 L. Journ. N. S. Chanc. 73.