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ALL the EFFECTIVE ORDERS in the HIGH COURT of CHANCERY from 1815 to the present time, with the Decisions thereon, and the Statutes which regulate the Practice of the Court. By TENISON EDWARDS, Esq., Barrister at Law. To which are added PRECE DENTS of BILLS of COSTS ADAPTED to the NEW ORDERS, with Practical Observations.

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No. 487-VOL. X.

MAY 9, 1846.

PRICE 18.

The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity:

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E. T. HOOD, Esq. of the Inner Vice-Chancellor Wigram's [F. FISHER, Esq. of Lincoln's
Temple, Barrister at Law.

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WE return to the subject of the Charitable Trusts Bill, which seems to be exciting great, and, as it appears to us, most unfounded opposition. The bill has been represented, as we have already mentioned, (ante, p. 149), as creating commissioners "who are to superintend, or rather virtually supersede, the present managers of all charities, and take upon themselves the direction and control of the charity affairs, the disposition of the funds, and the investigation, arrangement, and regulation of all the accounts."

A very slight examination of the clauses of the bill will shew that it proposes to do nothing of the sort. The jurisdiction which it proposes to give to the commissioners, in regard to their power of regulating charities, is restricted to charities whose incomes shall not exceed 100%. Their jurisdiction over charities generally is confined, first, to the exercise of a power which can only be exercised by way of assistance, in applying powers of sale, compromise, &c., where the trustees of a charity have not such powers; and, secondly, to the exercise of a power of regulating the manner in which accounts are to be kept, and of making inquiries and obtaining information as to the mode in which the funds of charities are administered. The objects of the bill are, therefore, twofold: first, to provide a remedial jurisdiction for adjudicating between the trustees and beneficiaries of charities possessing an income not exceeding 100l. a year; and, secondly, to provide an inquisitorial and auditorial, but not remedial, jurisdiction, for obtaining complete information on the state of the revenues of all charities, and the mode of dealing with them. With the first of these objects we cannot conceive how any person can reasonably quarrel. It is admitted that the expense of proceeding by information in Chancery, either VOL. X. ૨

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{Inn, Barrister at Law.

Court of Queen's Bench Temple, Barrister at Law.
G. J. P.SMITH, Esq. of the Inner

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Queen's Bench Bail Court

Court of Common Pleas, including Appeals under Registration of Voters Act....

Inn, Barrister at Law.

Gray's

D. POWER, Esq. of Lincoln's
Inn; and

W. PATERSON, Esq. of Gray's
Inn, Barristers at Law.

Court of Exchequer.... {W.M. BEST, Esq. of Gray's Inn,

Barrister at Law.

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to remedy abuses of trust, or to appoint new trustees, or to establish a scheme for a charity, or in any way to interfere remedially, is such as to render the jurisdiction of Chancery practically quite inapplicable for the smaller charities. The Chancellor has fixed 50l. a year as the income under which it is impracticable to call in the aid of Chancery to prescribe for sick charities. (See his Speech in the House of Lords, 22nd May, 1845). And we are quite satisfied, that every Chancery practitioner will admit, that his Lordship might have stated a much higher amount, without being beyond the mark. It is admitted, also, that there is no other adequate jurisdiction than that of Chancery; and it is admitted, finally, that there are thousands of charities whose incomes fall far below 50l. a year. Now, with these three admitted facts, that there are objects of remedial jurisdiction of a particular class,-that there is no jurisdiction but Chancery for them, and that Chancery cannot practically help them,-can any rational and unprejudiced person escape the conclusion, that the creation of a new tribunal is essential, and that such a tribunal, to be effective, must be armed with considerable powers?

The only substantial question upon which there can be a doubt is, whether the particular arrangements proposed by the bill now before Parliament, are adapted to meet the acknowledged want of a practical jurisdiction over small charity funds; and, without going the length of saying that the bill offers no handle for objection, we must say, that to us it appears defective only in some trivial matters, as to which it is very im material for the public service in what way they are settled. For instance, one is readily disposed to concur in the criticism put forth in a recent pamphlet on the subject, by the learned Gresham Lecturer, upon the

*Considerations on the Charitable Trusts Bill, &c. By W. Palmer, Esq., Barrister, and Gresham Lecturer on Law.

second clause, that the exclusive selection of a Chief Justice of the Bengal bench, out of all the Colonial Judges, as conferring a qualification for becoming a commissioner of charities, is not very intelligible. It would have been much simpler and much more consistent with usage, to have adopted the formula of the 5 Vict. c. 5, s. 19, and to have made the requisite qualification simply a standing of twelve years, which would let in, of course, Vice-Chancellors, and almost, of course, Masters in Chancery, Serjeants, and any Judge of any important colonial court. But when the criticism extends itself beyond these trivialities, and meddles with the very important 10th section of the bill, we think it must have been forgotten that that section models the powers and procedure of the commissioners as nearly as possible, consistently with the desideratum of inexpensive proceedings, upon the power and procedure of the Court of Chancery itself, of whose efficacy no doubt has ever been entertained, when it is brought to bear upon charities whose funds can bear its heavy expense.

The Court of Chancery is set in motion by the Attorney-General, at the relation of any informant. The commissioners are to be set in motion on the petition of any informant; and if they were not to be set in motion on the petition of any informant, how is any act to define what particular character a person must fill, in order to qualify him to bring the jurisdiction of the commissioners to bear? But the commissioners are not, it will be observed, directed to act upon any vague and general allegation; they are to be informed of some specific neglect, or abuse, or breach of trust, &c. And it is not to be supposed, that persons filling the high judicial situations that are to be created by the act, and sworn to do justice according to the terms of the act, will entertain frivolous informations; loading themselves with uncalled for labour, and pronouncing sentences which would ruin their reputation as judges, for the mere purpose of tormenting the trustees of charities. The 10th, 13th, 14th, and 18th clauses do, in fact, no more than place the commissioners, with reference to charities with incomes not exceeding 100%. a year, in the position of the Court of Chancery in reference to other charities. Yet it is on these sections that the learned writer, whose pamphlet we have already quoted, indulges in the following appeal (p. 18):-" My Lord, I hardly know what is most objectionable in these, with perhaps one or two exceptions, most objectionable provisions. They may be intended to do full justice quickly and cheaply, where the property is of small amount; but I fear they would more often lead to oppression, expense, and irremediable wrong, and prove subversive of the intention of the donors, which the law of England has endeavoured sacredly to fulfil. Where is the justice, or policy, or wisdom of establishing one tribunal for the rich, and another for the poor; one tribunal to-day, and another for the same charity (the income varying) tomorrow; of regulating the jurisdiction of the commissioners by a difficult and fluctuating criterion, uncertainly applied to the outset; of vesting in these commissioners, holding there court in any hidden room or corner of the kingdom, greater power in making orders and schemes (irrespective of the will of the do

nors) than is conceded to the high Court of Chancery; of authorising their proceeding upon any complaint, perhaps contained in an anonymous letter, when all experience testifies the necessity, to prevent oppression and groundless complaint, that the complainant failing should be responsible for costs; of allowing no appeal from the orders of the commissioners to the higher courts, though security might be offered for costs to prevent groundless appeals, thus omitting a safeguard most necessary to secure the equity of the commissioners' decisions, and making them arbitrary judges; and of not even allowing them to revise their own summary orders, unless on complaint within two months, though the subsequent finding of any mislaid old document, or other discovery, might justify their reversal? The injustice and impolicy of such provisions appear too plain for comment. I may further observe, that the powers of removing trustees, and enforcing the transfer or payment of stock or money, seem almost too great to be entrusted to the commissioners without appeal. The little contrivance to save expense on the appointment of new trustees, by making the trust estates vest in them without any conveyance, may (along with the anomaly) have the effect of depriving them of the best evidences of their title. The power, also, of authorising trustees to remove a schoolmaster, or other officer, upon proof to the commissioners' satisfaction of past negligence or present incompetency, appears too great to be exercised, in derogation of a freehold office, either without a hearing or without the right of appeal. It exceeds the power of authorising the removal of schoolmasters which was entrusted to the Court of Chancery by a recent act*.”

We might well answer, "Mr. Palmer, we hardly know which is the most objectionable of your arguments. You speak of the act as establishing one tribunal for the rich and another for the poor, whereas, what it really does, is to establish what never existed before, (in these matters), a tribunal for the poor; not creating any tribunal for the rich at all. You speak of regulating the jurisdiction of the commissioners by a difficult and fluctuating criterion, without at all condescending to explain what you mean. You speak of the commissioners holding their courts in any hidden room or corner of the kingdom, when there is not one word in the act to shew an intimation that the proceedings shall be in the least degree secret. You speak of their proceeding upon any complaint, perhaps contained in an anonymous letter, as though the language of the 10th section did not, in the strongest terms, convey an expression of intention on the part of the Legislature, that the whole course of proceeding is to be judicial. And, finally, you talk with horror of confiding to courts, on whom a character of at least co-ordinate importance with that of country commissioners of bankruptcy, or the commissioners of lunacy, is impressed, the power of removing, for negligence or incompetence, the petty schoolmaster of a petty charity,-a power, you say, too great to be exercised in derogation of a freehold office; as if every schoolmaster's office was necessarily a freehold office; as if, where it is so, the holder ought necessarily to hold it in direct breach of the trusts under which he was ap

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

pointed; and as if the commissioners are necessarily to be expected to cast aside all that respect for vested interests, which they will find in their great model the Court of Chancery, and their guides-its decisions. To quote your own words, "The injustice and impolicy of your objections appear too plain for comment.""

The only question that appears to us very material in this part of the bill is, whether the decision of the commissioners should be wholly without appeal. An appeal at the expense of the charity fund would, of course, be out of the question, as it would defeat the whole object of the act. But there does not seem any good reason, why, if the litigants think fit to try an appeal at their own expense, they might not be permitted to do so; the court of appeal having, of course, power to give costs at its discretion, or to make general orders as to the mode of providing for the costs of appeals. Our space will not permit us further to discuss at present the merits of this important bill. We hope we shall have succeeded in suggesting to the minds of some, at least, of our readers, doubts of the soundness of the objections that have been urged against it; and we hope, that, if it does pass into law, it will be the prelude to some similar legislative endeavour, to afford to the cestuis que trustent of private property of small amount, the benefit of an equitable jurisdiction practically accessible.

COURT OF QUEEN'S BENCH.

Review.

The Practice of the High Court of Chancery. By ED-
MUND ROBERT DANIELL, Esq., F.R.S., a Commissioner
of the Court of Bankruptcy. Second Edition, with con-
siderable Alterations, &c. By THOMAS EMERSON HEAD-
LAM, M.A., Barrister at Law.
[Stevens & Norton.]

We have no hesitation in declaring that this is the most able work which has ever been written on the practice of the Court of Chancery. And although it does not enter into all the details of the purely mechanical parts of the practice, as indeed it is not the object of the work to do, yet it is impossible to take it up, and compare it with others of similar kind, and not at the nature and extent of the subjects upon which it once observe that it goes considerably beyond them in treats, and in the manner in which those subjects are dealt with.

Mr. Daniell, in his preface to the first edition, states that he does not conceive that he is called upon to offer any apology for the publication of a treatise on the the want of such a treatise on a more extended scale practice of the Court of Chancery, on the ground that than those hitherto published had long been acknowledged; and we are glad, that, in opposition to the opinions and advice of some of his friends, he determined to carry out his views, and introduce the "Practical Observations on the Pleadings in the Court," which so usefully occupy a considerable portion of the work.

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 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:—

Barnes v. Shore-Rule for prohibition discharged.
Reg. v. Conyers-Writ of mandamus quashed.
Reg. v. Pelham-Judgment arrested.

Reg. v. Jesse Hall-Rule for criminal information dis-
charged.

Bodmer v. Butterworth-Verdict of not guilty to be entered for defendant; on the issue denying the specification, for plaintiff.

edition, "During the time which has elapsed since the 'publication of the first edition more extensive changes have taken place in the practice of Chancery than in 'any other period of similar duration in the annals of 'the court. Not only have numerous and most important Orders been issued, but the increase in the number of the courts of equity, and the great attention now bestowed on reporting their decisions, have multi'plied the sources from which conclusions of law and 'rules of practice are ordinarily deduced." And we think that the manner in which the learned editor has dealt with the original work has, upon the whole, been very judicious; namely, by not retaining the original matter, and, in addition, stating the alterations that have been 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."

Gillett v. Whitmarsh-Rule absolute.

Holford v. Bailey-Rule absolute to arrest judgment.
Doe d. Darke v. Bowditch-Rule absolute to enter ver-
dict for defendant.

Patteson, J., delivered the judgment of the court in
Reg. v. Moseley-Rule for quo warranto discharged.

Perry v. Fitzhowe-Judgment for plaintiff.

May 8.-In the following case, tried on the Oxford Circuit, Lord Denman, C. J., delivered the judgment of the court:

Whitmore v. Leak-Rule nisi.

If, indeed, this edition had retained all the contents of the original work, it might, as Mr. Headlam observes, "have exhibited a history of the progress of the 'Court of Chancery practice; but its size would have 'prevented its being useful as a book of daily reference." 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 mental agony to which he would have been subjected ders and contradictory decisions, and in philosophising upon the abortive attempts at Chancery reform. Even with all the diligence, accuracy, and precision which Mr. Headlam has brought into the field, what a fearful picture does this book present of the existing practice of the Court of Chancery! How little, it would seem, have the reforming efforts of nearly a quarter of a century done to improve the practice of a court, in

MASTER IN CHANCERY.-The Lord Chancellor has appointed Harry Edgell Bush, of Trowbridge, Wilt-in considering the operation and effect of repealed Orshire, Gent., to be a Master Extraordinary in the high Court of Chancery.

MEMBER RETURNED TO SERVE IN PARLIAMENT.-The Right Hon. Henry Pelham Pelham Clinton, commonly called the Earl of Lincoln, for the Falkirk district of burghs, in the room of William Baird, Esq., who has accepted the office of Steward of her Majesty's Chiltern Hundreds.

manner; but we would, in passing, remark, that he has overlooked the case of Thompson v. Selby, (12 Sim. 100), which ought, we think, to have been noticed in the paragraph of p. 659, where it is laid down, that, after a plea has been filed, no step can be taken in the cause till it has been disposed of."

which thousands and thousands of persons are so interested! What devious mazes still remain to bewilder the practitioner! What diligence, nerve, and energy are still required, to enable the student to become acquainted with that, which is termed the practice" of the Court of Chancery!

In order that some notion may be formed of the nature and extent of the subject with which the author and editor have had to deal, and the difficulty with which they have had to contend, we propose to refer (and we regret that our limits will allow us to do little more than to refer) to the leading portions of the work.

The first 374 pages are devoted to elucidate matters connected with the institution of a suit, preparatory to the filing of a bill; and it is at p. 375 of the first volume of the present edition that the practitioner is introduced to sect. 7, which treats "of filing the bill."

We then come to the section upon amending bills, the practice concerning which has been entirely altered since the first edition; and here we may observe, that the important point of practice recently decided by the Lord Chancellor in Christ's Hospital v. Grainger was anticipated by the editor, and correctly stated, as the result of the Orders, in page 394.

Chapter XVIII contains the practice on motions to dismiss. Here we find that the editor has taken a different view of the effect of these Orders, in one respect, from that which has recently been decided in the case of Dalton v. Hayter, (9 Jur. 1000); for Mr. Headlam assumes that the term "last answer," used in the 37th article of the 16th Order, and in the 114th Order, means the last answer not of any one defendant, but of all the defendants; so that no application to dismiss the plaintiff's bill for want of prosecution could be sustained until after all the defendants have answered. Lord Langdale, in the case referred to, has decided, that the term "last answer" refers to the answer of any one defendant, who may move to dismiss. In a subsequent notice of the cases which have occurred during the progress of the work through the press, Mr. Headlam enters into an elaborate argument in support 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 subpoena 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, after stating the effect of the statutes 2 Will. 4, c. 33, and 4 & 5 Will. 4, c. 82, under which, before the Orders of May, 1845, the practice with respect to the service of subpoenas was regulated, observes, that these acts "apply to suits of a particular description, and that they fetter the exercise of the privilege by certain restrictions; whereas the Orders of May, 1845, apply to suits ' of all descriptions, and in some respects dispense with 'the provisions which the Legislature had previously required."

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We next find that important head, "Evidence," ably discussed, and divided into apt parts and sections; and this brings us to the end of volume the first.

We can do no more than just glance at the chapters on Decree, in the first part of the second volume; and we are obliged to treat the proceedings in the Master's Office with as little ceremony, though the importance of the subject would seem to require a more minute investigation. Suffice it to say, that the course to be pursued in the Master's Office, upon the various references made to 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 subpoena out of the jurisdiction, and to dispense with the statutory fetters previously incident to its exercise. This point has, we understand, been raised before Sir James Wigram, V.C., and if so, the decision upon it will be important to those interested in the practice of the court.

Well, then, we have reached Chapter XI, (p. 486), and thenceforth our course is over between two and three hundred pages of valuable information, as well upon the pleading as the practice connected with demurrers, pleas, and answers. And on this part of the work the editor's task has been comparatively light; but, wherever it was necessary to interweave the Orders of 1845, he appears to have done so in a very concise and proper

end of his journey, the hearing of his suit on further directions. We ought, however, not to omit speaking in terms of commendation of the sections on the method of taking accounts and the sale of property.

Chapter XXVII contains nearly one hundred pages, and treats of the question of costs. At page 1268 the editor extracts a principle from the case of Millington v. Fox, (3 My. &C.352), and that principle, we apprehend, with all deference to the learned and pains-taking Sir James Wigram*, is correct, viz. that, if "a plaintiff proceeds with a cause after he has received a complete offer of all that he is entitled to, the court, in the ex

* See Colburn v. Simms, (2 Hare, 543).

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