CHAPTER XLIV. THE STATUTORY JURISDICTION OF THE COURT. Original jurisdiction of the Court: on what founded. Difference between statutory THIS Treatise has been hitherto devoted to the investigation of that part of the practice which relates to the original jurisdiction of the Court of Chancery. This practice is founded. partly upon immemorial customs in the offices connected with the Court, partly upon the decisions of the Judges, the General Orders of the Court, and the Regulations of the Judges and Registrars, and partly upon direct provisions made by Acts of Parliament. In many instances, where the legislature has thus conferred upon the Court additional means of enforcing its decrees and orders, the powers given for this object have been interwoven with the original practice: such statutes have, consequently, been already stated. There are also other Acts of Parliament affecting, in various ways, the rights of property, and, therefore, incidentally controlling and modifying the jurisdiction in Chancery; but, although the construction of these Acts has frequently to be determined in Equity, they relate rather to the law than the practice of the Court, and do not therefore come within the object of this work. Subject to these exceptions, it is intended, in this chapter, to review the Acts conferring additional powers upon the Court; and and original to state whatever peculiarities there may be in the manner in which jurisdiction. this statutory jurisdiction is carried into effect. In the first place, there is this material distinction between the manner in which the powers and remedies incident to the original jurisdiction are called into operation, and the means by which orders under statutes are 1 See ante, p. 1. 2 See ante, as to the following Acts: Aliens (7 & 8 Vic. c. 66), pp. 48, 49. English and Irish Decrees Enforcement (41 Geo. III. c. 90), p. 1067 et seq. Exchequer in Equity Transfer of Jurisdiction (5 Vic. c. 5), p. 6. Foreign Process (2 & 3 Will. IV. c. 33; 4 & 5 Will. IV. c. 82), p. 449. Judgments (1 & 2 Vic. c. 110; 2 & 3 Vic. c. 11; 3 & 4 Vic. c. 82; 18 & 19 Vic. c. 15; 23 & 24 Vic. c. 38; 27 & 28 Vic. c. 112), p. 1033 et seq. Marriages (4 Geo. IV. c. 76; 19 & 20 Vic. c. 119), p. 104. Petitions of Right (23 & 24 Vic. c. 34), p. 131. Solicitors (6 & 7 Vic. c. 73; 23 & 24 Vic. c. 127), p. 1692 et seq. made: namely, that, in the former case, it is necessary, in almost all cases, that a bill should be filed, or a suit otherwise regularly instituted, before any relief can be obtained: whereas, in the latter case, it is usual for the Act of Parliament providing the additional remedy also to enact, that it may be obtained in a summary manner upon petition, motion, or summons.1 In all such cases, the application should be entitled in the matter of the Act under which it is made; 2 and also in the matter of the particular trust or other subject to which it has reference. 4 CH. XLIV. § 2. Applications directed to be made to the Lord Chancellor, may be made to a Where the application is directed by the Act to be made to the Lord Chancellor, it may be, and usually is, in the first place heard by one of the Vice-Chancellors; but it seems it cannot be made to the Master of the Rolls, unless he is named in the Act.5 The Act itself frequently points out the precise relief which the applicant is ultimately entitled to receive. It was formerly usual for the statute to direct that the matter might be heard upon affidavit; but, owing to the changes in the system of taking evidence, this is no longer necessary; and the evidence in support of not named. the application is adduced in the usual manner. Orders made under the statutory jurisdiction are enforced in the same manner as orders made in a suit which has been regularly instituted." Before any suit, petition, or other proceeding (not being an application in which any person claims any property or seeks any relief adversely to any charity, and not being an application, in any suit or matter actually pending at the time the application is made), for obtaining any relief, order, or direction concerning or relating to any charity, or the estate, funds, property or income thereof, shall be commenced, presented or taken by any person whomsoever (other than the Attorney-General), he must obtain 1 See ante, p. 3. 2 Re Law, 4 Beav. 509, 510. 8 1st Rep. Eng. & Ir. Com. Ap. 73. Where the jurisdiction is conferred by the statute, and the property sought to be affected forms the subject-matter of a suit or other proceeding, the application should be entitled both under the Act, and in such suit or proceeding. For the mode of en 7 See ante, p. 1042 et seq.; and Ord. Vice-Chancellor; but Master of not to the the Rolls, where he is Nature of relief to be given frequently defined. Evidence. Orders enforced in same manner as in suits. No legal proceeding to be taken withcertificate of missioners, Charity Comexcept in a pending suit or matter, or by adverse claimants, or the AttorneyGeneral. out order or CH. XLIV. § 2 (1). What is a pending matter. from the Board of Charity Commissioners an order or certificate, signed by their secretary, authorizing or directing such proceeding to be taken; and no proceeding for obtaining any such relief, order, or direction as aforesaid will be entertained or proceeded with by the Court of Chancery, or by any Court or Judge, except upon and in conformity with an order or certificate of the said Board.1 This provision applies to applications made to the Court, although such applications are made under the authority of a special Act of Parliament. It is not necessary to show that the Commissioners approve of the particular application; but only that it is made with their sanction.3 The sanction of the Commissioners is not, it seems, required where a fund belonging to a charity has been paid into Court under the Trustee Relief Act; or the Lands Clauses Consolidation Act; nor was it required where an application was made to deal, for the purposes of a college, with an estate, of which part What is not. belonged to a school and the residue to the college. Where a Statute of 5 final order has been made, and a scheme settled, the matter is no longer pending within the meaning of the provision above stated; and the sanction of the Commissioners must be obtained." The Statute 43 Eliz. c. 4, commonly called the Statute of Charitable Uses, recites that "lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money, and stocks of money, have been heretofore given, limited, appointed and assigned, as well by the Queen's most excellent Majesty and her most noble progenitors, as well by sundry other well-disposed persons: some for the relief of aged, impotent, and poor people; some for maintenance of sick and maimed soldiers and mariners, schools of learning, free schools, and scholars in universities; some for the repairs of bridges, ports, havens, causeways, churches, sea-banks, and highways; some for education and preferment of orphans; some for or towards relief, stock, or maintenance for houses of correction; some for marriages of poor maids; some for supportation, aid, and help of young tradesmen, handicraftsmen, and persons decayed; and 1 Charitable Trusts Act, 1853 (16 & 17 Vic. c. 137), §§ 17, 18; Re Lister's Hospital, 6 De G., M. & G. 184; Re Markwell, 17 Beav. 618; Re London, Brighton, and South Coast Railway Company, 18 Beav. 608; and see Re Cheshunt College, 1 Jur. N. S. 995, V. C. W.; Re Skeetes, ib. 1037, V. C. K.; Re St. Giles and St. George, Bloomsbury, 25 Beav. 313; 4 Jur. N. S. 297; Re Willenhall Chapel, 2 Dr. & Sm. 467, 468; ante, p. 16; and for the rules of the Commissioners, as to the application for their certificate, see Vol. III. 2 Re Bingley School, 2 Drew. 283; 18 Jur. 668; and see Re Watford Burial 4 Re St. Giles and St. George, Bloomsbury, ubi sup. ; but see Re Markwell, ubi sup. 5 Re Lister's Hospital, ubi sup. ; but see Re Cheshunt College, Re London, Brighton, and South Coast Railway Company, and Re Skeetes, ubi sup. ; Re Faversham Charities, 10 W. R. 291, V. C. W. 6 Re Meyrick, 1 Jur. N. S. 438 V. C. K. 7 Re Ford's Charity, 3 Drew. 324; Re Jarvis' Charity, 1 Dr. & Sm. 97; 5 Jur. N. S. 724. others for relief or redemption of prisoners or captives, and for aid or ease of any poor inhabitants, concerning payments of fifteens, setting out of soldiers, and other taxes: which lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money, and stocks of money, nevertheless have not been employed according to the charitable intent of the givers and founders thereof by reason of frauds, breaches of trust, and negligence in those that should pay, deliver, and employ the same." CH. XLIV. § 2 (2). This statute has become obsolete; but the recital above set out is still important, inasmuch as the Court has reference to it, in Determines to what purdeciding what is to be deemed a charitable purpose: for such pur- poses present pose must be either one of those purposes denominated charitable jurisdiction in the above statute; or one which the Court construes to be applies. charitable, by analogy to those mentioned in that statute.2 2. Sir Samuel Romilly's Act. over charities Enables Court to make orders upon peti tion. When the statute of Elizabeth fell into disuse, the only mode 52 Geo. III. by which any remedy could be obtained in Chancery for the abuse c. 101: of a charity was by way of information. Under these circumstances, the statute usually called Sir Samuel Romilly's Act was passed. By that Act it is provided, that in every case of a breach of any trust or supposed breach of any trust created for charitable purposes, or whenever the direction or order of a Court of Equity shall be deemed necessary for the administration of any trust for charitable purposes, it shall be lawful for the Lord Chancellor, Lord Keeper, or Lords Commissioners for the custody of the Great Seal, or Master of the Rolls for the time being, upon the petition of any two or more persons stating such complaint, and praying such relief as the nature of the case may require, to make such order therein, and with respect to the costs of such applications, as to him or them shall seem just; and that such order shall be final and conclusive, unless the party or parties who shall think himself or themselves aggrieved thereby, shall, within two years from the time when such order shall have been passed and entered, appeal from such decision to the House of Lords. By a subsequent Act, the Attorney-General, acting ex officio, is empowered to make application by petition, to the Court of Chan- to proceed 1 Ex parte Kirby Ravensworth Hospital, 15 Ves. 305; Corporation of Ludlow v. Greenhouse, 1 Bligh N. S. 17, 62; and for a detailed account of the effect of the statute and the decisions under it, see Duke's Law of Charitable Uses; Shelford on Mortmain, p. 276 et seq.; and see Tu dor's Charitable Trusts; and Finlason's 2 Kendall v. Granger, 5 Beav. 300, 302; 8 Ante, p. 7 et seq. 4 52 Geo. III. c. 101, § 1. Time for appeal there from. Attorney General since empowered under the Act. CH. XLIV. §2 (2). Act applies only to simple cases of abuse of trust. cery, with respect to any charity, under the provisions of Sir Samuel Romilly's Act, or under the provisions of any Act or Acts passed, or to be passed, authorizing the application to the Court by petition, according to the provisions of that Act.1 It has been held, that the Court, though it has jurisdiction, ought to consider, in all cases, whether it is fit to exercise that jurisdiction, or to put the party to file an information; and that, in cases of breach of trust, the jurisdiction ought to be confined to the simple case of abuse of a clear trust, not involving any question beyond the question of such abuse, and particularly not Repayment involving the interest of persons to whom abuse of trust could not be imputed. The Court has no power, under the Act, to repair a ordered there- previous misapplication of trust funds.* of trust fund cannot be under. Act does not structive trusts; The Act has been held not to apply to cases of constructive apply to con- trusts; or where different persons claim the trust property adversely to each other," and it is sought to obtain the decision of the Court as to which of them is entitled to the benefit of the charity; or where, although the object of the petition was a scheme for the management of the property, it appeared that there was a dispute as to the persons in whom the legal estate was vested. It has also been decided, that the Court had no jurisdiction to make an order upon petition, transferring the funds of a dispensary to a hospital, and amalgamating the two institutions." nor in disputes concerning objects of the charity: or where doubtful who has legal estate. Act applies where object is the internal regulation of charity; or in case of construction; or where different charitable objects Where the object of the petition is the internal regulation of a charity, an application may be made under the statute; 10 but if there is a visitor, and the matter concerning which the interference of the Court is sought belongs exclusively to his cognizance, then the complaint must be addressed to him, and no remedy can be obtained in the Court of Chancery."1 It has been held, that the Court has jurisdiction under the Act: where the point to be decided is simply a question of law, depending on the construction of a particular instrument; 12 where the objects of the charity have no distinct interests, and the AttorneyGeneral, therefore, properly represents them all, and where, 1 Charitable Trusts Act, 1853 (16 & 17 Vic. c. 137), § 43. 2 Ex parte Rees, 3 V. & B. 10; and see Re Dean Clarke's Charity, 8 Sim. 34, 42. 3 Corporation of Ludlow v. Greenhouse, 11 Bligh N. S. 17; Ld. Red. 19; Ex parte Skinner, 2 Mer. 453; and see cases collected, 14 Beav. 120, n.; Re Manchester New College, 16 Beav. 610; 17 Jur. 540. 4 Re Hall's Charity, 14 Beav. 115; and see cases collected, ib. 120, n. 5 Ex parte Brown, G. Coop. 295. 6 Ex parte Rees; and Re Dean Clarke's Charity, ubi sup.; Re West Retford Church Lands, 10 Sim. 101, 109; 3 Jur. 501. 7 Re Dean Clarke's Charity, ubi sup.; and see Attorney-General v. Bishop o Worcester, 9 Hare, 328; 16 Jur. 3. 8 Re Phillipott's Charity, 8 Sim. 381, 389; see also Re West Retford Church Lands, ubi sup. 9 Re Reading Dispensary, 10 Sim. 118, 121; 3 Jur. 697. 10 Re Shrewsbury School, 1 M'N. & G. 324, 331; 14 Jur. 259; Re Manchester New College, 16 Beay. 610; 17 Jur. 540. 11 Attorney-General v. Clare Hall, 3 Atk. 674; Ex parte Berkhampstead Free School, 2 V. & B. 134, 144; Thomson v. University of London, 10 Jur. N. S. 669: 12 W. R. 733, V. C. K. 12 Re Upton Warren, 1 M. & K. 410, 415. |