taken pro confesso, the lord chancellor said that he could not then do otherwise than decree the information to be taken pro confesso; if it ought not to be done, an application ought to be made to discharge the order for setting it down to be taken pro confesso; the costs followed of course, but only to that time (o).

If the attorney general do not put in an answer to a bill filed against him, within a reasonable time, the court will order, that unless the answer be put in by a short day, the bill be set down to be taken pro confesso (p).

Where an information charges that the defendants, the trustees of a charity, have deeds in their possession, and they admit it in their answer, an order may be obtained for leaving such deeds and papers with the clerk in court in the cause, with liberty for the relators, their solicitors, or agents, to take copies and extracts from them at their own expense (q).

this cause comprised in the three schedules to the said defendants' answer, and which documents are admitted by the said defendants to be in their custody or power; and it

(0) Attorney General v. Young, 3 Ves. 209. See 1 Eq. Abr. 179, pl. 5. Hawkins v. Crook, 2 P. Wms. 556. Davis v. Davis, 2 Atk. 21; Jopling v. Stuart, 4 Ves. 619. (p) Peto v. Attorney General, 1 is ordered that the defendants be at Younge & Jerv. 509.

(q) Attorney General v. The Dean and Chapter of St. Paul's, Reg. lib. A. 1833; fol. 1024. Attorney General v. The University of Cambridge, Reg. lib. A. 1833, fol. 1253; Attorney General v. Lowndes, Reg. lib. A. 1833, fol. 1171. See 4 Ves. 66; 5 Madd. 16; 1 Sim. & Stu. 309; 5 Sim. 409, 552; 1 Younge, 280; 1 Mylne & K. 88; 2 Sid. 35.

The following order was made in another cause, "that the defendants do produce at the hall of the Goldsmiths' Company, in the city of London, the several deeds, wills, books, papers and other documents, relating to the matters in question, in

liberty to seal up such parts of the before-mentioned documents as, according to an affidavit previously to be made by the clerk of the said defendants, do not relate to the charities in question in this cause; and it is ordered that the relators, and their solicitor, be at liberty to inspect and peruse the same, and take copies of and extracts from the same, or any of them, as they may be advised, and at all seasonable times, giving reasonable notice thereof, at the relator's expense; and it is ordered that the same be produced in this court, at the hearing of this cause. Attorney General v. Wardens and Commonalty

The master is to exercise the discretion given him by the 60th order, to determine what books or papers shall be produced by the trustees of a charity estate, though the order or decree under which he is proceeding requires the parties to produce on oath all books and papers (r).

An application for a re-hearing of a charity cause should be made by petition, and not by motion (s).

Where a legacy has been carried over by an order of the court to the account of a charity, the question as to the validity of the bequest cannot be argued, on a petition for payment of the legacy, but a petition for re-hearing the cause must be presented (t).

Where a decree on default was made for setting aside a lease of a charity estate, with covenant for perpetual renewal, and directing an account of the actual rent, a re-hearing upon the application of the defendant was allowed upon his paying the relators' costs, and the previous costs in the master's office, without disturbing the proceedings before the master, as to the draft of a report of what was due, but the money was not to be paid into court before the report was made (u).

An application to suspend proceedings under a decree, against which there was an appeal, until it had been heard,

of Goldsmiths, Reg. lib. A. 1832, fol. 433. See Attorney General v. Clothworkers' Company, Id. fol. 378.

(r) In re of the parishes of Llantrisant, &c., 1 Russ. & M. 25. The words of the 60th order are, "that where by any decree or order of the court, books, papers, or writings are directed to be produced before the master for the purposes of such decree or order, it shall be in the discretion of the master to determine what books, papers, or writings are to be produced, and when and how long they are to be left in his office; or in case he shall deem it neces

sary that such books, papers, or writings, should be left or deposited in his office, then he may give directions for the inspection thereof by the parties requiring the same, at such time and in such manner as he shall deem expedient." 2 Russ. 21.

(s) Attorney General v. Brooke, 18 Ves. 319. See Cunningham v. Cunningham, Ambl. 89; Kinsay v. Kinsay, 1 Dick. 145.

(t) Bradshaw v. Tasker, 2 Mylne & K. 223.

(u) Attorney General v. Brooke, 18 Ves. 319.

was refused in the case of a charity in a course of actual distribution, to endure only for the life of the plaintiff, where attending to the probable duration of her existence, the consequence of suspending the proceedings would, in the event of her death, before the appeal was heard, have caused the utter disappointment of the exercise of the discretion given to the plaintiff; and the judgment below appeared to be right, and the pecuniary circumstances of the plaintiff did not authorise an inference that if a wrong distribution were made, that she would not be able to furnish the means of setting it right. Such an application, when it does not succeed, is generally, almost universally, liable to the costs (v).

11. Of the accounts which will be directed of charity estates.] The general principle is, that unless there is a fair and reasonable explanation given, the account against the trustees of a charity shall be taken from the time when an inexcusable misapplication of the trust fund commenced.

Defendants in a charity suit cannot have the same benefit from length of time, or latches in calling them to account, which defendants, in other cases, might successfully contend for: there is no fixed limit within which an account against a trustee of a charity must be confined; but in each case the court is guided by the particular circumstances.

When the Court of Chancery limits an account of the rents and profits of charity estates to the time of filing the information, or to six years before that date, it does not act with reference to the statute of limitation (w). The principle

215.

(v) Waldo v. Caley, 16 Ves. 214, See Willan v. Willan, Id. 216; Burke v. Browne, 15 Ves. 184. (w) By stat. 3 & 4 Wm. IV., c. 27, s. 42, it is enacted, "that after the thirty-first day of December, one thousand eight hundred and thirtythree, no arrears of rent or of interest in respect of any sum of

money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress, action, or suit, but within six years next after the same respectively shall have become due, or next after an acknowledgment of

upon which it proceeds is, that it will not deal harshly with men, who meaning to discharge their duty faithfully, have nevertheless mistaken it (x).

With respect to the general principle on which the court deals with trustees of a charity, though it holds a strict hand over them, when there is wilful misapplication, it will not press severely upon them where it sees nothing but mistake. It often happens, from the nature of the instruments creating the trust, that there is great difficulty in determining how the funds of a charity ought to be administered. If the administration of the funds, though mistaken, has been honest, and unconnected with any corrupt purpose, the court while it directs for the future, refuses to visit with punishment what has been done in time past. To act on any other principles would deter all prudent persons from becoming trustees of charities (y).

Where there is a trust of a charitable nature, and it is matter of difficulty to know the exact meaning of the instruments creating it, or to determine who are the cestuis que trusts, it has never been the habit of the Court of Chancery to call on those who have for a long time acted in the management of the trust mistakenly, and not corruptly, to account for what passed before the filing of the information. The hardship of the contrary rule would be extreme (≈). the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent provided nevertheless, that where any prior mortgagee or other incumbrancer shall have been in possession of any land, or in the receipt of the profits thereof, within one year next before an action or suit shall be brought by any person entitled to a subsequent mortgage or other incumbrance on the same land, the person entitled to such subsequent mortgage or incumbrance may recover in such action

or suit the arrears of interest which shall have become due during the whole time that such prior mortgagee or incumbrancer was in possession or receipt as aforesaid, although such time may have exceeded the said term of six years."

(x) Attorney General v. the Mayor of Exeter, 2 Russ. 367.

(y) Per Lord Eldon, Attorney General v. the Corporation of Exeter, 2 Russ. 54.

(z) Per Lord Eldon, Attorney General v. the Corporation of Exeter, 2 Russ. 50.

In the Attorney General v. Owen (a), Lord Eldon, in setting aside an improvident lease of a charity estate, would not charge the defendant with any rent beyond that reserved for any period prior to the filing of the bill; but intimated that in future persons taking such leases would not be let off so easily. In another case of the same kind, the account of all benefits made by the defendants was granted from the time of filing the information or a previous demand, if any appeared (b).

Lord Loughborough appears to have thought, even where the parties were willing to take a limited account, that he was bound to decree a general account of rents (c).

But Lord Eldon thought, that although an account might be directed generally against a party who had been guilty of great mismanagement, yet it might be confined, if expedient, to the time of filing the information (d).

Sometimes the court has been influenced by prudential motives, with respect to the interests of the charity, in directing the time for which the account shall be prosecuted (e).

A governor of a charity, who had taken a lease, was directed to be charged with the full value of the property, if it was more than the reserved rent (f).

Where the testator had fixed the amount of the salaries to be paid to the master and usher of a school, and the trustees, upon an increase of the income of the charity, had augmentedthe salaries upon their own responsibility, Sir T. Plumer, M. R. on exceptions to the master's report, would not allow the trustees any thing beyond the fixed salaries; and held that the surplus ought to have been expended for the benefit of the scholars, in providing them with books, paper, and other necessary articles; and if a surplus remained after that, a scheme should have been laid before the master for its application; for the court would not sanction an excess of

(a) 10 Ves. 561.

(b) Attorney General v. Griffith, 13 Ves. 580.

(c) Attorney General v. Bowyer, 5 Ves. 300.

(d) Attorney General v. Dixie, 13 Ves. 537, 538.

(e) S. C. Ibid. 533.

(f) Attorney General v. Earl of Clarendon, 17 Ves. 500.