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No. 487_Vol. X.
MAY 9, 1846.

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LONDON, MAY 9, 1846.

to remedy abuses of trust, or to appoint new trustees,

or to establish a scheme for a charity, or in any way to We return to the subject of the Charitable Trusts interfere remedially, is such as to render the jurisdicBill, which seems to be exciting great, and, as it ap- tion of Chancery practically quite inapplicable for the pears to us, most unfounded opposition. The bill has smaller charities. The Chancellor has fixed 50l. a year been represented, as we have already mentioned, (ante, as the income under which it is impracticable to call p. 149), as creating commissioners “ who are to super- in the aid of Chancery to prescribe for sick charities. intend, or rather virtually supersede, the present ma- (See his Speech in the House of Lords, 22nd May, 1845). nagers of all charities, and take upon themselves the And we are quite satisfied, that every Chancery practidirection and control of the charity affairs, the disposi- tioner will admit, that his Lordship might have stated tion of the funds, and the investigation, arrangement, a much higher amount, without being beyond the and regulation of all the accounts."

mark. It is admitted, also, that there is no other adeA very slight examination of the clauses of the bill quate jurisdiction than that of Chancery; and it is adwill shew that it proposes to do nothing of the sort. mitted, finally, that there are thousands of charities The jurisdiction which it proposes to give to the com- whose incomes fall far below 501, a year. Now, with missioners, in regard to their power of regulating char- these three admitted facts, that there are objects of reities, is restricted to charities whose incomes shall not medial jurisdiction of a particular class, that there is exceed 1001. Their jurisdiction over charities gene- no jurisdiction but Chancery for them,--and that Chanrally is confined, first, to the exercise of a power cery cannot practically help them,-can any rational which can only be exercised by way of assistance, in and unprejudiced person escape the conclusion, that supplying powers of sale, compromise, &c., where the the creation of a new tribunal is essential, and that trustees of a charity have not such powers; and, se- such a tribunal, to be effective, must be armed with condly, to the exercise of a power of regulating the considerable powers? manner in which accounts are to be kept, and of The only substantial question upon which there can making inquiries and obtaining information as 'to the be a doubt is, whether the particular arrangements mode in which the funds of charities are administered. proposed by the bill now before Parliament, are adapted

The objects of the bill are, therefore, twofold: first, to meet the acknowledged want of a practical jurisdicto provide a remedial jurisdiction for adjudicating be- tion over small charity funds; and, without going the tween the trustees and beneficiaries of charities pos- length of saying that the bill offers no handle for oblessing an income not exceeding 1001. a year; and, se- jection, we must say, that to us it appears defective condly, to provide an inquisitorial and auditorial, but only in some trivial matters, as to which it is very imnot remedial, jurisdiction, for obtaining complete in- material for the public service in what way they are formation on the state of the revenues of all charities, settled. For instance, one is readily disposed to concur and the mode of dealing with them. With the first in the criticism put forth in a recent pamphlet on the of these objects we cannot conceive how any person subject, by the learned Gresham Lecturer*, upon the can reasonably quarrel. It is admitted that the ex- | * Considerations on the Charitable Trusts Bill, &c. By pense of proceeding by information in Chancery, either W. Palmer, Esq., Barrister, and Gresham Lecturer on Law.

Vol. X.

Q

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second clause, that the exclusive selection of a Chief nors) than is conceded to the high Court of Chancery: Justice of the Bengal bench, out of all the Colonial of authorising their proceeding upon any complaint, Judges, as conferring a qualification for becoming a perhaps contained in an abonymous letter, when all commissioner of charities, is not very intelligible. It experience testifies the necessity, to prevent oppreswould have been much simpler and much more con- sion and groundless complaint, that the complainant sistent with usage, to have adopted the formula of the failing should be responsible for costs; of allowing no 5 Vict. c. 5, s. 19, and to have made the requi- appeal from the orders of the commissioners to the site qualification simply a standing of twelve years, higher courts, though security might be offered for which would let in, of course, Vice-Chancellors, and costs to prevent groundless appeals, thus omitting å almost, of course, Masters in Chancery, Serjeants, and safeguard most necessary to secure the equity of the any Judge of any important colonial court. But commissioners' decisions, and making them arbitrary when the criticism extends itself beyond these trivial- judges; and of not even allowing them to revise their ities, and meddles with the very important 10th section own summary orders, unless on complaint within treo of the bill, we think it must have been forgotten that months, though the subsequent finding of any mislaid that section models the powers and procedure of the old document, or other discovery, might justify their commissioners as nearly as possible, consistently with reversal ? The injustice and impolicy of such provisions the desideratum of inexpensive proceedings, upon the appear too plain for comment. I may further observe, power and procedure of the Court of Chancery itself, that the powers of removing trustees, and enforcing of whose efficacy no doubt has ever been entertained, the transfer or payment of stock or money, seem almost when it is brought to bear upon charities whose funds too great to be entrusted to the commissioners without can bear its heavy expense.

appeal. The little contrivance to save expense on the The Court of Chancery is set in motion by the At- appointment of new trustees, by making the trust estorney-General, at the relation of any informant. The tates vest in them without any conveyance, may (along commissioners are to be set in motion on the petition of with the anomaly) have the effect of depriving them of any informant; and if they were not to be set in motion the best evidences of their title. The power, also, of auon the petition of any informant, how is any act to de- thorising trustees to remove a schoolmaster, or other fine what particular character a person must fill, in officer, upon proof to the commissioners' satisfaction of order to qualify him to bring the jurisdiction of the past negligence or present incompetency, appears too commissioners to bear? But the commissioners are not, great to be exercised, in derogation of a freehold office, it will be observed, directed to act upon any vague and either without a hearing or without the right of appeal.; general allegation; they are to be informed of some It exceeds the power of authorising the removal of specific neglect, or abuse, or breach of trust, &c. And schoolmasters which was entrusted to the Court of it is not to be supposed, that persons filling the high ju- Chancery by a recent act*." dicial situations that are to be created by the act, and We might well answer, “Mr. Palmer, we hardly sworn to do justice according to the terms of the act, know which is the most objectionable of your arguwill entertain frivolous informations; loading them- ments. You speak of the act as establishing one tribunal selves with uncalled for labour, and pronouncing sen- | for the rich and another for the poor, whereas, what it tences which would ruin their reputation as judges, for really does, is to establish what never existed before, the mere purpose of tormenting the trustees of char- (in these matters), a tribunal for the poor; not creating ities. The 10th, 13th, 14th, and 18th clauses do, in any tribunal for the rich at all. You speak of regufact, no more than place the commissioners, with relating the jurisdiction of the commissioners by a diffiference to charities with incomes not exceeding 1001. cult and fluctuating criterion, without at all condescenda year, in the position of the Court of Chancery ing to explain what you mean. You speak of the in reference to other charities. Yet it is on these commissioners holding their courts in any hidden room sections that the learned writer, whose pamphlet we or corner of the kingdom, when there is not one word have already quoted, indulges in the following ap- in the act to shew an intimation that the proceedings peal (p. 18):-“My Lord, I hardly know what is most shall be in the least degree secret. You speak of their objectionable in these, with perhaps one or two excep- proceeding upon any complaint, perhaps contained in an tions, most objectionable provisions. They may be anonymous letter, as though the language of the 10th intended to do full justice quickly and cheaply, where section did not, in the strongest terms, convey an expresthe property is of small amount; but I fear they sion of intention on the part of the Legislature, that the would more often lead to oppression, expense, and irre | whole course of proceeding is to be judicial. And, finally, mediable wrong, and prove subversive of the intention you talk with horror of confiding to courts, on whom & of the donors, which the law of England has endea character of at least co-ordinate importance with that voured sacredly to fulfil. Where is the justice, or po- of country commissioners of bankruptcy, or the comlicy, or wisdom of establishing one tribunal for the rich, missioners of lunacy,is impressed, the power of removing, and another for the poor; one tribunal to-day, and ano- for negligence or incompetence, the petty schoolmaster ther for the same charity (the income varying) to of a petty charity,-a power, you say, too great to be exmorrow; of regulating the jurisdiction of the com ercised in derogation of a freehold office; as if every missioners by a difficult and fluctuating criterion, I schoolmaster's office was necessarily a freehold office; as uncertainly applied to the outset; of vesting in these if, where it is so, the holder ought necessarily to hold it commissioners, holding there court in any hidden room in direct breach of the trusts under which he was apor corner of the kingdom, greater power in making orders and schemes (irrespective of the will of the do-1

* 3 & 4 Vict. c. 77, s. 17.

pointed; and as if the commissioners are necessarily to

Rebiew. be expected to cast aside all that respect for vested interests, which they will find in their great model the The Practice of the High Court of Chancery. By EDCourt of Chancery, and their guides—its decisions. To MUND ROBERT Daniell, Esq., F.R.S., a Commissioner quote your own words, “The injustice and impolicy of of the Court of Bankruptcy. Second Edition, with conyour objections appear too plain for comment.'”

siderable Alterations, fc. By THOMAS EMERSON HEADThe only question that appears to us very material LAM, M.A., Barrister at Law.

[Stevens & Norton.] in this part of the bill is, whether the decision of the commissioners should be wholly without appeal. An

We have no hesitation in declaring that this is the

most able work which has ever been written on the appeal at the expense of the charity fund would, of

practice of the Court of Chancery. And although it course, be out of the question, as it would defeat the

does not enter into all the details of the purely mechawhole object of the act. But there does not seem any nical parts of the practice, as indeed it is not the object good reason, why, if the litigants think fit to try an ap- of the work to do, yet it is impossible to take it up, and peal at their own expense, they might not be permitted

compare it with others of similar kind, and not at

once observe that it goes considerably beyond them in to do so; the court of appeal having, of course, power

the nature and extent of the subjects upon which it to give costs at its discretion, or to make general orders

treats, and in the manner in which those subjects are as to the mode of providing for the costs of appeals. dealt with.

Our space will not permit us further to discuss at Mr. Daniell, in his preface to the first edition, states present the merits of this important bill. We hope we that he does not conceive that he is called upon to offer shall have succeeded in suggesting to the minds of some. any apology for the publication of a treatise on the

practice of the Court of Chancery, on the ground that at least, of our readers, doubts of the soundness of the

of me the want of such a treatise on a more extended scale objections that have been urged against it; and we than those hitherto published had long been acknowhope, that, if it does pass into law, it will be the pre- ledged, and we are glad, that, in opposition to the opinlude to some similar legislative endeavour, to afford to ions and advice of some of his friends, he determined to the cestuis que trustent of private property of small

carry out his views, and introduce the “ Practical Obamount, the benefit of an equitable jurisdiction practi

servations on the Pleadings in the Court,” which so

usefully occupy a considerable portion of the work. cally accessible.

The first volume was published in 1837; the second in 1840; and Part 1 of Vol. III was published in 1841,

and the remaining part in September, 1845, containing COURT OF QUEEN'S BENCH.

altogether 2160 pages. But before Mr. Daniell had published the last part of the third volume, the time

had arrived when a new edition was required; for, as is May 4.—Lord Denman, C. J., delivered the judg- observed by Mr. Headlam, in his preface to the present ment of the court in the following cases :

edition, “ During the time which has elapsed since the Barnes o. Shore-Rule for prohibition discharged. publication of the first edition more extensive changes Reg. o. Conyers-Writ of mandamus quashed.

have taken place in the practice of Chancery than in Reg. o. Pelbam- Judgment arrested."

any other period of similar duration in the annals of Reg. o. Jesse Hall–Rule for criminal information dis- the court. Not only have numerous and most imcharged.

portant Orders been issued, but the increase in the Bodmer o. Butterworth—Verdict of not guilty to be en- number of the courts of equity, and the great attention

tered for defendant; on the issue denying the speci- | now bestowed on reporting their decisions, have multification, for plaintiff.

plied the sources from which conclusions of law and Gillett v. Whitmarsh-Rule absolute. Holford v. Bailey-Rule absolute to arrest judgment.

rules of practice are ordinarily deduced.” And we think Doe d. Darke v. Bowditch-Rule absolute to enter ver

that the manner in which the learned editor has dealt dict for defendant.

| with the original work has, upon the whole, been very

judicious; namely, by not retaining the original matter, Patteson, J., delivered the judgment of the court in and, in addition, stating the alterations that have been Reg. v. Moseley-Rule for quo warranto discharged.

effected; "but by remodelling the text, so as to render

it as nearly as possible what he conceived it would May 7.—Lord Denman, C. J., delivered the judg- \ have been had Mr. Daniell now published it for the ment of the court in

'first time." Perry o. Fitzhowe-Judgment for plaintiff.

If, indeed, this edition had retained all the contents

1 of the original work, it might, as Mr. Headlam obMay 8.-In the following case, tried on the Oxford serves, “ have exhibited a history of the progress of the Circuit, Lord Denman, C. J., delivered the judgment · Court of Chancery practice; but its size would have of the court:

prevented its being useful as a book of daily reference.” Whitmore o. LeakRule nisi.

And we are glad in being able to state, that, whilst Mr. Headlam has not in any degree affected the value of the original work, yet that, by the plan which he

has adopted, he has saved the practitioner from the MASTER IN Chancery.—The Lord Chancellor has

mental agony to which he would have been subjected appointed Harry Edgell Bush, of Trowbridge, Wilt

in considering the operation and effect of repealed Orshire, Gent., to be a Master Extraordinary in the highl ders and contradictory decisions, and in philosophising Court of Chancery.

upon the abortive attempts at Chancery reform. Even MEMBER RETURNED TO SERVE IN PARLIAMENT.—The with all the diligence, accuracy, and precision which Right Hon. Henry Pelham Pelham Clinton, commonly Mr. Headlam has brought into the field, what a fearcalled the Earl of Lincoln, for the Falkirk district of ful picture does this book present of the existing pracburghs, in the room of William Baird, Esq., who has tice of the Court of Chancery! How little, it would accepted the office of Steward of her Majesty's Chiltern seem, have the reforming efforts of nearly a quarter of Hundreds.

I a century done to improve the practice of a court, in which thousands and thousands of persons are so in- manner; but we would, in passing, remark, that he terested! What devious mazes still remain to be- has overlooked the case of Thompson v. Selby, (12 Sim. wilder the practitioner! What diligence, nerve, and 100), which ought, we think, to have been noticed in energy are still required, to enable the student to be the paragraph of p. 659, where it is laid down, that, come acquainted with that, which is termed the practice “after a plea has been filed, no step can be taken in the of the Court of Chancery!

cause tiÎl it has been disposed of." In order that some notion may be formed of the nature Chapter XVIII contains the practice on motions to and extent of the subject with which the author and dismiss. Here we find that the editor has taken a difeditor have had to deal, and the difficulty with which ferent view of the effect of these Orders, in one respect, they have had to contend, we propose to refer (and we from that which has recently been decided in the case of regret that our limits will allow us to do little more Dalton v. Hayter, (9 Jur. 1000); for Mr. Headlam asthan to refer) to the leading portions of the work. sumes that the term “ last answer,” used in the 37th

The first 374 pages are devoted to elucidate matters article of the 16th Order, and in the 114th Order, connected with the institution of a suit, preparatory to means the last answer not of any one defendant, but of the filing of a bill; and it is at p. 375 of the first volume all the defendants; so that no application to dismiss the of the present edition that the practitioner is introduced plaintiff's bill for want of prosecution could be susto sect. 7, which treats “ of filing the bill.

tained until after all the defendants have answered. We then come to the section upon amending bills, the Lord Langdale, in the case referred to, has decided, practice concerning which has been entirely altered that the term “last answer” refers to the answer of since the first edition; and here we may observe, that any one defendant, who may move to dismiss. In a the important point of practice recently decided by the subsequent notice of the cases which have occurred Lord Chancellor in Christ's Hospital v. Grainger was during the progress of the work through the press, anticipated by the editor, and correctly stated, as the Mr. Headlam enters into an elaborate argument in sapresult of the Orders, in page 394.

| port of his view of the subject. We arrive, at page 404, at that portion of the work In treating “ of Replication," an abstract of the Orwhich treats of the mode of enforcing an appearance ders of 1845 upon that part of the practice is introand answer to the complainant's bill. In this part of duced. Several decisions with respect to the effect of the practice a very great change has taken place, in con- those Orders upon suits in progress at the time they sequence of recent General Orders, and the editor has came into operation have been pronounced subsequently availed himself of this change, to alter the manner in to the publication of that portion of the work; they which the subject was treated in the first edition. Mr. will, however, be found collected in a notice prefixed Daniell wrote separate sections on the several writs then to this edition; and we presume that the learned in force, and included in his opening chapter the pecu- editor did not contemplate the probable operation of liarities of process incidental to particular defendants. those Orders, and the state of despair in which suitors, Mr. Headlam has adopted another arrangement. He practitioners, and judges have alike been thrown, in commences by stating the various modes of service construing and acting upon them, whenever there has upon defendants of a different description, or allowed been a conflict between the old and the new practice, under peculiar circumstances; and proceeds to detail or he would, prophet-like, have prepared his readers the mode of proceeding in the event of service not for their fate; but, upon the whole, we are not surbeing effected; assuming, then, that a subpæna has prised that Mr. Headlam did not volunteer his services been duly served, he gives a succinct account of the se- upon the occasion, as we ourselves have been witness veral compulsory steps both to compel appearance and to the difficulty and embarrassment which a most acute to compel answer. In each case, after stating the prac- and eminent judge, even though having the assistance tice applicable to ordinary defendants, he proceeds to of the faithful Berry, all-powerful in points of practice, enumerate the peculiarities incident to defendants of has felt in arriving at a satisfactory conclusion with particular characters or descriptions, as infants, mar: respect to the course to be adopted in a case of conflict ried women; and here we would refer to an important between the old Orders and the new. passage, that will be found in page 422. Mr. Headlam, We next find that important head, “ Evidence," ably after stating the effect of the statutes 2 Will. 4, c. 33, discussed, and divided into apt parts and sections; and and 4 & 5 Will. 4, c. 82, under which, before the Orders this brings us to the end of volume the first. of May, 1845, the practice with respect to the service of We can do no more than just glance at the chapters on subpænas was regulated, observes, that these acts “ap- | Decree, in the first part of the second volume; and we

ply to suits of a particular description, and that they are obliged to treat the proceedings in the Master's Office • fetter the exercise of the privilege by certain restric-with as little ceremony, though the importance of the sub* tions; whereas the Orders of May, 1845, apply to suits ject would seem to require a more minute investigation. of all descriptions, and in some respects dispense with Suffice it to say, that the course to be pursued in the the provisions which the Legislature had previously Master's Office, upon the various references made to required.”

him, is treated of in a very full and explanatory manner. It would seem, however, that the language of the And certainly it will not be for want of a guide to steer 5 Vict. c. 5, under the authority of which the New him through the labyrinths and gloomy recesses of those Orders are issued, scarcely authorises the court to ex- offices, if the practitioner fail in eventually reaching the tend the remedies of serving a subpæna out of the ju- end of his journey, the hearing of his suit on further risdiction, and to dispense with the statutory fetters directions. We ought, however, not to omit speaking previously incident to its exercise. This point has, we in terms of commendation of the sections on the method understand, been raised before Sir James Wigram, V.C., of taking accounts and the sale of property. and if so, the decision upon it will be important to Chapter XXVII contains nearly one hundred pages, those interested in the practice of the court.

and treats of the question of costs. At page 1268 the Well, then, we have reached Chapter XI, (P. 486), editor extracts a principle from the case of Millington v. and thenceforth our course is over between two and three Fox, (3 My.&C.352), and that principle, we apprehend, hundred pages of valuable information, as well upon the with all deference to the learned and pains-taking Sir pleading as the practice connected with demurrers, pleas, James Wigram*, is correct, viz. that, if “a plaintiff and answers. And on this part of the work the editor's proceeds with a cause after he has received a complete task has been comparatively light; but, wherever it offer of all that he is entitled to, the court, in the exwas necessary to interweave the Orders of 1845, he appears to have done so in a very concise and proper / * See Colburn v. Simms, (2 Hare, 543).

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