Attending sale

..

Where by any proceeding taken by the opposite party
it becomes necessary to advise or receive instruction
from a client in the progress of a suit or matter, for
each attendance ..
Where in the course of a cause or matter a party suing
or sued in a fiduciary or representative character
necessarily incurs costs not allowed upon taxation
between party and party, the registrar shall apply to
the judge to allow such sums as he may think fit out
of any funds in court applicable to that purpose.
Attending taxing costs

All necessaries copies, per folio

Office copies obtained from Court of Chancery (sum paid).

Letters and messages

COSTS OF THE DAY ON ADJOURNMENT.

:

004
110

004

220

N.B.-The registrar is to tax the Bills of Costs upon the lower scale when the subject-matter of the suit or proceeding does not exceed 1007., and upon the higher when it exceeds 1007.

PART IV.

CHAP. XI.

Order XXIII.
Rule 21.

Taxing

officer.

Order III.

Rule 11.

Allowance to

witnesses.

§ 4. MISCELLANEOUS RULES RELATING TO Costs. Taxation.]

"The registrar shall be the taxing officer of the court” (1).

"The allowance to be made to witnesses for attendance either before the court or registrar shall in no case exceed the highest rate of the allowance in actions" (m).

Costs to Creditors.] - Creditors are entitled to the costs of successfully proving debts according to the scale of costs in that behalf (n).

Interest on Costs.]—Where a decree or order is made in which the payment of any costs previously taxed, is ordered, the amount as taxed, including the costs of taxation, may be ordered and directed by the court to be paid with interest at four per cent. from the date of the certificate of taxation; "the amount of such interest to be verified by affidavit and to be payable and recoverable out of the same fund or in the same manner as the amount of such costs" (o).

Charging Property with Costs.]-The act 23 & 24 Vict. c. 127, enacts that

Sect. 28. "In every case in which an attorney or solicitor shall be employed to prosecute or defend any suit, matter or proceeding in any court of justice, it shall be lawful for the court or judge, before whom any such suit, matter or proceeding has been heard or shall be depending, to declare such attorney or solicitor entitled to a charge upon the property recovered or preserved, and upon such declaration being made such attorney or solicitor shall have a charge upon and against and a right to payment out of the property, of whatever nature, tenure or kind the same may be, which shall have been recovered or preserved through the instrumentality of any such attorney or solicitor, for the taxed costs, charges and expenses of or in reference to such suit, matter or proceeding; and it shall be lawful for such court or judge to make such order or orders for taxation of and for raising and payment of such costs, charges and expenses out of the said property as to such court or judge shall appear just and proper, and all conveyances and acts done to defeat, or which shall operate to defeat, such charge or right, shall, unless made to a bonâ fide purchaser for value without notice, be absolutely void and of no effect as against such charge or right: provided always, that no such order shall be made by any such court or judge in any case in which the right to recover payment of such costs, charges and expenses is barred by any Statute of Limitations" (p).

(1) County Court Orders and Rules in Equity, 1868, Order XXIII. Rule 21.

(m) Id. Order III. Rule 11. See ante, Vol. I. p. 213.

(n) See County Court Orders and Rules in Equity, 1868, Order XXIII.

Rule 22, ante, p. 100.

(0) 23 & 24 Vict. c. 127, s. 27.

(p) See In re Keane, and In re Lumley v. Desborough, 40 L. J. (N. S.) Ch. 617. See also "The Attorneys and Solicitors Act, 1870," post, p. 140.

CHAPTER XII.

SPECIAL EQUITABLE JURISDICTION OF THE COUNTY COURTS IN VARIOUS MATTERS.

§1.-EQUITABLE JURISDICTION IN CHARITABLE TRUSTS.

§2.-LITERARY INSTITUTIONS.

§3.-FRIENDLY AND OTHER SOCIETIES.

§4.-EQUITABLE JURISDICTION OF COUNTY COURTS IN WINDINGUP SOCIETIES AND COMPANIES.

§ 5.-ENFORCING OR SETTING ASIDE AGREEMENTS BETWEEN ATTORNEYS AND THEIR CLIENTS.

§ 6. ACKNOWledgment of DEEDS BY MARRIED WOMEN.

§ 1.-EQUITABLE JURISDICTION IN CHARITABLE TRUSTS APART from and previously to the general equitable jurisdiction of the county courts, conferred by the Act of 1865, those courts had and still have a special jurisdiction of an equitable kind in various matters. Some branches of this special jurisdiction, already more than once referred to (a), form the subject of the present chapter. The first branch of this special jurisdiction relates to charitable trusts (b).

(a) See ante, p. 2, and Vol. I. p. 46. As to the original jurisdiction in partnerships and legacies and distributive shares, see ante, Vol. I. pp. 29, 767.

(b) The jurisdiction of the county court in charitable trusts is so rarely exercised, and the powers of the county court judge are, by the acts, so blended with the powers and jurisdictions of the High Court of Chancery, that it is considered inexpedient to do more in this work than to give an outline of the practice. The statutes must in every case be carefully examined, and the rules and forms (in the possession of every registrar) referred to, before proceedings are actually taken in the county court.

The following acts relate to charit

able trusts, 16 & 17 Vict. c. 137, ("The Charitable Trusts Act, 1853"); 18 & 19 Vict. c. 124 (" The Charitable Trusts Amendment Act, 1855"); 23 & 24 Vict. c. 136 (“The Charitable Trusts Act, 1860"); 25 & 26 Vict. c. 112 ("The Charitable Trusts Act, 1862"); 32 & 33 Vict. c. 110 ("The Charitable Trusts Act, 1869"). All the preceding acts are to be construed together and may be cited as " The Charitable Trusts Acts, 1853 to 1869." A subsequent act, 33 & 34 Vict. c. 34, amended the law as to the investments on real securities of trust funds held for public and charitable purposes. The analysis of the practice given in the text is taken principally from the Report of the County Court Commissioners, 1855.

PART IV.

By the 16 & 17 Vict. c. 137 ("The Charitable Trusts Act, 1853," CHAP. XII. establishing a board of charity commissioners), and by amending and extending acts, where the gross annual income of any charity (c) does not exceed 501. (d), and where equitable relief is required, jurisdiction, subject to certain conditions in the acts, is given to the county court to entertain the application, and to give such relief and make such orders and directions in relation to the matter of such application as might "be made or given by the Court of Chancery, in respect either of its ordinary or its special or statutory jurisdiction, or by the lord chancellor intrusted with the care and commitment of the custody of lunatics," in a suit regularly instituted, or upon petition, as the case may require. It is provided, however, that no county court shall, upon any proceedings under these acts, have jurisdiction "to try or determine the title at law or in equity to any real or personal property, or any term or interest therein as between any charity or the trustee thereof, and any person holding or claiming such real or personal property, term or interest, adversely to such charity, or to try or determine any question as to the existence or extent of any charge or trust" (e). A right of appeal, subject to certain conditions, is given to the party who alleges himself to be aggrieved by or dissatisfied with any order made by any county court (ƒ).

District in which pro

ceedings are instituted.

The practice with reference to applications under the act, relating to charitable trusts, depends principally on the provisions of "The Charitable Trusts Act, 1853," on certain orders framed by the lord chancellor, in pursuance of a power contained in the act (g), and on the general practice of the county court.

The county court in which proceedings are instituted, is the court of the district where the charity is established or administered, or is applicable wholly or partially to or for objects or purposes within the district, or any two or more of such districts (h). Where two or more county courts have jurisdiction concurrently, the

(c) "Charity" means "every endowed foundation and institution taking or to take effect in England or Wales, and coming within the meaning, purview or interpretation of the statute of the forty-third year of Queen Elizabeth, chapter 4, or as to which, or the administration of the revenues or property whereof the Court of Chancery has or may exercise jurisdiction" (16 & 17 Vict. c. 137, s. 66); and it includes " every institution in England or Wales endowed for charitable purposes," 18 & 19 Vict. c. 124, s. 48. See also 25 & 26 Vict. c. 112; see exceptions, however, 16 & 17 Vict. c. 137, s. 62; 18 & 19 Vict. c. 124, ss. 47, 48.

(d) Originally limited to 30!., but

extended to 50l. by "The Charitable Trusts Act, 1860" (23 & 24 Vict. c. 136), s. 11. It may be observed, that although the jurisdiction under the original act extended only to charities, the annual income whereof does not exceed 301., yet should the amount with which a defaulting trustee is chargeable exceed the sum of 50%, there is no provision in the statute which excludes the jurisdiction of the county court in such a

case.

(e) 16 & 17 Vict. c. 137, s. 41. (f) Id. s. 39.

(g) These Orders are dated March 6, 1854.

(h) 16 & 17 Vict. c. 137, s. 32.

board may order to which of such courts any application shall be made (i), and no application can be made to or entertained by more than one county court at the same time (k).

PART IV.

CHAP. XII.

titled to

The persons entitled to apply to the county court under this Persons enjurisdiction are, her majesty's attorney-general, the trustee or one apply. or more of the trustees of any charity, or the person or persons administering, or claiming to administer, or interested in the charity which is the subject of the application, or any two or more of the inhabitants of any parish or place within which the charity is administered or applicable. This distinction, however, exists between applications by the attorney-general and those by any of the other persons before mentioned: that the former may apply to the court at his discretion, but the latter require the sanction of the charity commissioners for the purpose.

It will be convenient in describing the practice of the court on these applications to state-first, that which applies to private persons; and, secondly, that which applies to the attorneygeneral.

Applications by Private Persons.]-The person who is desirous of applying to the county court for relief having obtained the proper order or certificate from the charity commissioners, pursuant to notice given to the board (7), must file it with the registrar. That officer will then, at the instance of the applicant (who is deemed the plaintiff), and subject to the discretion of the judge, summon or give notice to the proper persons to appear or attend proceedings at an appointed court. These summonses and notices are served by post, unless the judge otherwise directs. On the appointed day, the persons summoned to appear, or who have received notice to attend, or any of the persons who are entitled to apply under the act, may appear and oppose the application. The judge then proceeds to make such order in the matter as to him seems just. This order, together with a copy of the other proceedings, is then transmitted to the charity commissioners. If it meet with their approval the order is final, unless some person authorized to make an application under the statute is desirous of appealing against the order.

In such a case the intended appellant must, within a calendar Appeal. month after making the order, give notice in writing to the commissioners and to the court, of his wish to appeal, stating the grounds of his intended appeal. If the commissioners think that the appeal should be entertained, they give a certificate to that effect, and proceedings on the order are suspended during such time as the circumstances require. The commissioners may require the appellant to join in a bond with two sufficient sureties to be approved by the registrar of the county court, to the treasurer of the court, or such other person as they think fit, in such sum as (1) Id. s. 17.

(i) 16 & 17 Vict. c. 137, s. 31. (k) Id. s. 32.