adds proclamations where it is intended to bar strangers: marks on the Acts of the Session 8 & 9 Vict. &c.," (2 Black. Com. 350, 351, and App. xiv.; 5 Cru. Dig. who also observes, "But here again arises a difficulty tit. xxxv, c. 2, p. 71). But the essential and binding of no ordinary kind. The Courts of law are now for part of the fine is the acknowledgment or concord: (5 the first time invested with an equitable jurisdiction, Hen. 4, c. 14). Then the 1st and 2nd sections of the without being furnished with proper machinery for 5 Vict. c. 32, st. 2, must be read together, and are ap-giving it effect; for it is evident that no Court of law plicable to those cases only where a fine appears to have can now determine whether or not any satisfied attendbeen duly acknowledged, and the writs, concords, and ant term is in existence, without having first solved other proceedings lodged with the proper officer; in that most difficult of equitable problems, Is any person which case the first of these sections renders the fine entitled to be protected by it?" [The counsel for the valid, where owing to the misprision of the officer the plaintiff here read as part of their argument several roll has been improperly made up; and the second re- very long extracts from the pamphlet of Mr. Williams.] medies the omission of an entry of proclamations, if the [Parke, B.-This is not the only case in which Courts fine has been duly inrolled or entered on the plea-roll of law are called on to determine questions appertainof the session in which it was levied. Now the plea- ing to Courts of equity. Where a man sells an estate, roll in the present case only contains the licentia con- we are called on to say whether the title he offers is a cordandi-it does not even shew which party was de- good one both at law and in equity, and the point beforceant, unless that may be collected from the pay-fore us in such cases is, Can such good title be made? ment of the king's silver. Secondly, the conusor in There is also the case of assignees of bankrupts or inthis case had no estate sufficient to support a fine. solvent debtors, who take all property and rights which [Park, B.-We do not know what estate Cadwalader they had both at law and in equity.] Mr. Williams' Thomas the y e younger had during his father's lifetime, construction of the statute is rendered probable from it might have been for his own life or his father's life, the language of the Land Clauses Consolidation Act, or for years, or from year to year,-the point was not 8 & 9 Vict. c. 18, which was passed in the same session discussed at the trial.] A fine may be levied by a per- of Parliament; the 81st section of which enacts that all son who has an estate of freehold created by a wrongful conveyances made according to the form given in the etry, but a mere continuance of a possession originally schedules to that act, &c., shall be effectual to vest the lawful is not enough: (1 Wms. Saund. 319 (e), n. (k), lands thereby conveyed in the promoters of the under6th ed.; William v. Thomas, 12 East, 141; Culley v. taking, and shall operate to merge all terms of years Teylerson, 11 Adol. & Ell. 1008). If therefore Cad- attendant by express declaration or by construction of walader Thomas the younger is to be considered as law on the estate or interest so thereby conveyed, and having been in possession at the time of his father's to bar and destroy all such estates tail and all other death, he ought to have done some act amounting to a estates rights titles remainders reversions limitations disseisin of the reversioner or devisee, such as making a trusts and interests whatsoever of and in the lands feoffment &c. (Focus v. Salisbury, Hard. T. 400). If comprised in such conveyances which shall have been however he was out of possession and then entered as purchased or compensated for by the consideration heir, the case of Doe d. Burrell v. Perkins (3 M. & S. therein mentioned; but although terms of years be 271) shews this fine insufficient. In that case a female thereby merged, they shall in equity afford the same tenant for life, with remainder in fee, leased to A. for protection as if they had been kept on foot, and asher own life, who continued in possession after her death, signed to a trustee for the promoters of the undertaking and after his death his son and devisee having entered to attend the reversion and inheritance." [Alderson, and levied a fine with proclamations; the Court of B.-Suppose two persons equally entitled in equity to King's Bench held that the remainderman might the protection of a term; which of them is to have maintain an ejectment against the son, without an it? Where there has been an actual transfer of the actual entry or notice to quit. Lord Ellenborough, C. J., term there will be no difficulty, for the transfer shews there says, "In order to constitute a title by disseisin who is the person to be protected.] One may displace there must be a wrongful entry; but here has been no the other by proving his own title in a court of law. wrongful entry, but only a wrongful continuance of the If the term is good at all at law, it must be good for possession." It is true that this case has been doubted either. by text-writers and in argument, but it has on several occasions been recognised and acted on by the Courts: (Doe d. Davis v. Davis, 12 Price, 756; 1° C. & P. 130; Doe d. Souter v. Hull, 2 D. & R. 38; Doe d. Parker v. Gregory, 2 Adol. & Ell. 14; Doe d. Leeming v. Skirruz, 7 Adol. & Ell. 157). In Davies v. Lowndes, which has been cited by the other side, the only question was whether the point had been properly put to the jury. Thirdly, then with respect to the term of years, the other side are in this dilemma,either the term is merged in the inheritance or it is not; if it is merged, it can afford the defendant no protection at law; and if it is not merged, the plaintiff must recover on the demise of the trustee of the term. The general opinion of conveyancers is that the merger which takes place under the act is confined to a single day, the 31st December, 1815; if the act has not merged the term on that day, it contains no provision for its merger at any subsequent date; and consequently that the true construc- Then as to the fine itself, I think there was proof tion of the statute is that all attendant satisfied terms of its having been properly levied. The chirograph were absolutely merged in their respective inheritances is the legal evidence of every part of the fine except on the 31st December, 1845; unless there were in ex- the proclamations, which ought to be proved by an istence on that day incumbrances affecting the pro- examined copy of the roll; and the meaning of the perty, to protect against which it was necessary that the 5 Vict. c. 32, st. 2, which was passed in consequence term should be kept alive. This is the view taken by of the careless way in which the records of the Welsh Mr. Joshua Williams in his pamphlet, entitled "Re-courts were kept, is that there must be sufficient PARKE, B.-On the notes of the judge who tried this case we must take the fact of the entry of Cadwalader Thomas the younger as heir, as conceded; but whether the expression that he entered as heir means that not having been in possession before he made a formal entry after his father's death, or that he was in possession before and then asserted a formal title, is somewhat obscure; for it seems that before his father's death he was in the occupation of a part of the land. In the former view of the facts the plaintiff's counsel relies on Doe d. Burrell v. Perkins, (3 M. & S. 271); but that case has been much shaken by the observations made by conveyancers upon it, as well as by the recent case of Davies v. Lowndes, and must be considered as very doubtful authority. We therefore take it that the evidence on the trial here shewed what was equivalent to an entry by the heir-at-law, who subsequently levied this fine, he having a sufficient estate to support a fine. evidence on the roll of a fine having been levied by certain parties and respecting certain premises, in which case the statute supplies the want of proclamations. Now in the present case we have a chirograph of the same date with the plea-roll, which is also produced, and the two taken together shew that a fine has been levied and entered on the roll, to which nothing is wanting but proclamations; for the chirograph and plea-roll sufficiently identify the premises and the parties, so that the statute meets the very case and supplies the want of proof of proclamations. The only remaining question is that as to the effect of the 8 & 9 Vict. c. 112, respecting the satisfied term of years, and as there is another case standing for argument, which involves the construction of that statute, we will on this point take time to consider. If the term is still subsisting the plaintiff will succeed here by virtue of the title of the trustee, and the rest will be a question for the Court of Chancery. We must therefore say what becomes of the term before we finally dispose of the present case; but we will first hear the other argued. ALDERSON, ROLFE, and PLATT, BB., concurring,—Cur. adv. vult. on the last point. The judgment of the Court was now delivered by PARKE, B.-At the time this case was argued we gave our opinion on two of the points made, and took time to consider the third. The defendant was purchaser of this property for valuable consideration, and took an assignment of an old satisfied mortgage term from the trustee of a person who had taken a conveyance from an heir-at-law, who entered on the death of his ancestor and levied a fine. We said that the fine was good under the recent statute, (5 Vict. c. 32, st. 2), which was passed to remedy the negligence of the offcers of the late Welsh courts; and the heir-at-law having had sufficient title to enable him to levy a fine, the present defendant is in by good title, and does not require the satisfied term to protect him in his possession. The question which remains to be decided is what has become of the satisfied term under the 8 & 9 Vict. c. 112, which provides, that "every satisfied term of years which either by express declaration or by construction of law shall, upon the 31st December, 1845, be attendant on the inheritance or reversion of any lands, shall on that day absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall be attendant as aforesaid; except that every such term of years which shall be so attendant as aforesaid by express declaration, although hereby made to cease and determine, shall afford to every person the same protection against every incumbrance charge estate right action suit claim and demand as it would have afforded to him if it had continued to subsist, but had not been assigned or dealt with after the said 31st December, 1845, and shall for the purpose of such protection be considered in every court of law and of equity to be a subsisting term." As the plaintiff has in his declaration a demise by the trustee of the term added to that of the real claimant of the property, we must decide whether that satisfied term did or did not continue after the 31st December, 1845; and in order to do this we must also determine whether a party claiming the protection of the term really was entitled to that protection against an incumbrancer, and as that is a question of equity we have thrown on us the duty of a Court of equity without the adequate machinery. Such however is the operation of the act, and we must therefore decide whether the defendant who was in possession wanted the protection of this term. Now as we have already held that he did not, seeing that he had the legal estate *The case of Doe d. Hall v. Moulsdale, which has since been argued, and now stands for judgment. wholly independant of the term, his case does not fall within the latter part of the 1st section of the statute; but it falls within the former part of it, the effect of which is that the term actually ceased and determined by the operation of the act on the 31st December, 1845; and consequently the plaintiff cannot recover on the demise of the trustee of the term. If it had turned out that the defendant wanted the protection of the term, on the ground that he was purchaser for valuable consideration, it would be necessary for us to determine what course he ought to take-probably it would be necessary for him to apply to a Court of equity, or apply to this Court to strike out of the declaration the demise in the name of the trustee. But as he does not want the protection of the term, it has absolutely ceased and determined on the 31st December, 1845. The defendant is therefore entitled to a verdict on all the demises, and this rule must be discharged.—Rule discharged. CONSISTORY COURT. WALLSCOURT v. WALLSCOURT.—Jan. 22. Pleading-Cruelty. An Allegation responsive to the Libel in a Cause of Divorce, by reason of Cruelty and Adultery, pleaded, first, Habits of Provocation and Exaggeration; secondly, in Explanation of Charges in the Libel, Conduct of the Husband in relation to the Children of the Marriage; thirdly, the Allegation did not counterplead several of the Articles of the Libel:-Held, that, first, Habits might be pleaded generally: secondly, as the Treatment of the Children did not amount to Cruelty towards the Wife, unless adopted for the Purpose of annoying the Mother, such Conduct was admissible in a responsive Plea; thirdly, all the Charges laid in the Libel need not be contradicted in Plea. In this case, a libel and additional articles had been brought in, on behalf of Lady Wallscourt, (10 Jur. 553), charging Lord Wallscourt with cruelty and adultery. A responsive allegation on behalf of Lord Wallscourt was now given in. The first article of this alle gation pleaded, that Lady Wallscourt was the only surviving child of a gentleman of large fortune. The second article, after contradicting what was pleaded in the fifth article of the libel, namely, that, from the first year of the marriage of Lord and Lady Wallscourt to their final separation, he conducted himself towards her with violence and cruelty, pleaded, that, soon after their marriage, Lady Wallscourt became in the habit of treating Lord Wallscourt with contempt, and was in the habit of interfering with or breaking his rules and regulations for the management of his establishment, and especially at a later period, with respect to their children; and was in the habit of greatly exaggerating facts, and of speaking and acting violently towards Lord Wallscourt. The fifth and sixth articles pleaded, that the regulations laid down by Lord Wallscourt, and his conduct in respect to the studies and education of his children, were not adopted in order to wound and harass the feelings of Lady Wallscourt as a mother, but with a view to teach his children to be useful to themselves, and independent of others. The seventh and eighth were not objected to. The ninth pleaded, that, on the 17th June, 1845, in consequence of the misconduct of Lord Wallscourt's agent, arrangements were made for Lord and Lady Wallscourt, accompa nied or followed by their children and a relation of Lady Wallscourt's, to go to Killarney, these facts being set out with much detail. The 10th, 11th, and 12th, that Lady Wallscourt refused to go, as agreed upon, persisting in going to Paris instead, consequent disputes, and a personal struggle between her and Lord Wallscourt on the 18th June; his driving her over to Oranmore, on her way through Dublin to Paris, on the 19th, when they separated, and interchange of affectionate letters subsequently. The thirteenth, cohabitation from March, 1845, to June, and that they slept together on the 18th June. The admission of this allegation was opposed. Addens and Bayford, against the admission of the allegation. The second article pleads generally the habits of Lady Wallscourt, without giving any specification. [Dr. Lushington. The whole course of practice in these courts shews that a habit may be pleaded, not in cases of adultery only, but also in cases of cruelty. If any evidence is taken down upon this article, you may contradict after publication.] The articles relating to Lord Wallscourt's rules for the education of his children, and his conduct in enforcing those rules, have no bearing upon the charge of cruelty towards his wife. The ninth article, which goes into great details as to an intended journey to Killarney, raises a number of questions quite irrelevant to the case. Further, the allegation is defective in not counterpleading all the charges in the libel. Sir J. Dudson, Q. A., and Jenner, contra.-Many of the charges depend upon the declarations of Lady Wallscourt, and they will be explained away altogether, or at least their effect diminished, if we are allowed to plead her general habits, as in the second article; and the Court will not narrow the husband's ground of defence. [Dr. Lushington.-The practice of pleading generally, as you have done in this article, is too well established for me to alter; but it is a very inconvenient mode of pleading. Twenty new issues might be raised upon this one article. Suppose an interrogatory, which would be quite legitimate, put to this effect-Have you deposed in the affirmative upon this article? If yea, depose to each specific act upon which you have so answered. The expense of all this must fall on your party.] In the libel, Lord Wallscourt was charged with treating his children in the manner there stated, for the purpose of driving Lady Wallscourt from his house; it is allowable to counterplead this, and shew the motives of his conduct to his children. The ninth article is introductory to those which fellow, and forms a part of our case, shewing, that, whatever may have been the conduct of Lord, Wallscourt, it was condoned. Dr. LUSHINGTON.-The question which I have to deaide is, as to the admissibility of certain parts only of this responsive allegation; for other parts are clearly entitled to go to proof. This suit is brought after a coLabitation of nearly twenty-five years, and the birth of several children. Lord Wallscourt is charged with adultery, and several acts of cruelty; and in the fifth article of the libel, his alleged cruelty is pleaded to have commenced in the first year of the marriage, and to have continued till their final separation in the summer of 1845. In this responsive plea, this is not only denied, but Lady Wallscourt is charged with giving great provocation. With respect to the merits of such a case, the Court cannot form any opinion at this stage of the proceedings; nor could anything be worse, or more contrary to all principles of justice and equity, than now to presume, as to any of the matters alleged, that they would be proved or not. The only course to follow, is to see what the law allows to be alleged, by way either of charge, of defence, or of justification. On the present occasion, where the charges against the husband are numerous, and of a most serious kind, he must have some latitude given him in making his defence; and, in a case like the one before the Court, where the cruelty is alleged not only directly, but with relation to the conduct of the husband towards other persons, it is necessary to see quo animo, quo intuitu, such conduct was followed, because an act of cruelty on the part of the father to a daughter is not necessarily cruelty towards the mother, although it may amount, in certain circumstances, in the eye of the law, to such. The father may be guilty of the greatest cruelty to his children, and yet be guiltless in respect of his wife; or he may be guilty of far less cruelty to his children, and this less degree of cruelty in regard to the children will make him criminal towards his wife. I have already, in the course of the argument, expressed my opinion upon the practice of pleading habits of cruelty. There is, indeed, always considerable difficulty in this mode of pleading, because, if cruelty is pleaded generally, the objection always taken is, that it cannot be disproved: if you do not plead it generally, the party is deprived of the benefit of shewing, that, for many years, the course of conduct has been such as to lay a foundation for more specific acts. Certainly, if you plead cruelty generally as a habit, then you are not under the necessity of pleading it more specifically, but you are subject to this consequence: that, if any specific act comes out in evidence, either in chief or on interrogatory, the other party is at liberty to contradict this fact of the publication. I will not take upon myself to go against this rule of pleading, which has been long established, though I am fully sensible how desirable it is to confine the charges to specific acts. Then, with regard to what has been said, that this allegation does not counterplead all the charges in the libel, it is no objection to a plea, that it does not answer the whole of the charge: it is quite competent to the party to say, I am satisfied with contradicting so much only; and I rely upon the other side not being able to prove the remaining charges laid. The real question in these cases is, not whether the responsive plea is sufficient to rebut the charges in the other allegation, but whether what is therein pleaded be pertinent to the issue. With these observations, I come to consider these articles. The first is purely historical; and the only remark it calls for is, that there are always many facts, the bearing of which the Court cannot, at this stage of the proceedings, see, although the counsel in the case may; and of this sort is the fact here stated, that Lady Wallscourt was an only child, and that her father possessed considerable property. I see that one of the grounds of this case will be, that Lord Wallscourt complained of her resorting to her father, and, therefore, it may be important to shew that she was an only child, and what were her father's circumstances. I have already adverted to the principles which must govern the admissibility of the second article, particularly since evidence has been given on the fifth article of the libel; and, therefore, although I think the admission of this article, which pleads the habits of Lady Wallscourt, will lead to further pleading, and occasion considerable delay and expense, I do not think myself at liberty to strike it out. The fifth and sixth articles are, I think, admissible, for the reasons I have already stated. I give no opinion upon the plan adopted by Lord Wallscourt for educating his children; but he is at liberty to shew that he did not adopt it to harass or annoy Lady Wallscourt. With respect to the ninth article, I was, when I first read it, for a considerable time in doubt as to the meaning of pleading all this matter; but I now understand that it is to raise the question of condonation, which is not pleaded directly, but left to be fished out. I still am of opinion that all this is pleaded with much more minuteness than is necessary; because it comes to this: Lord and Lady Wallscourt agreed to go to Killarney, and afterwards Lady Wallscourt refused to go to Killarney, and insisted on going to Paris. This is the gist of this part of the case; and as these minutia will do little good, they must be struck out. The remaining articles are not objected to, except that it has been said they offer no contradiction to what is pleaded in the libel. I have already disposed of that objection; and the allegation, subject to such reformation as Í have directed, may be admitted. COURT OF REVIEW. Ex parte WEBSTER, In re ACRAMAN.—Jan. 27. This was the petition of the Union Bank of London, praying that they might be at liberty to prove against the estate of Messrs. D. E. and A. Acraman, the acceptors, on a bill of exchange for the sum of 30007., without producing the bill; and that such proof might be made without deducting therefrom the amount of a composition received from one Williams, the drawer, before the tender of the proof; and also for liberty to prove against the estate of the said D. E. and A. Acraman, and the estate of Messrs. Acraman, Morgan, & Co., on a bill of exchange for 30267. 6s., drawn by the former upon the latter firm, without deducting therefrom the amount of a composition received from Williams, who was the indorser of the bill before proof; the commissioner having only allowed a proof against the estate of D. E. and A. Acraman for the amount of the debt, minus the composition. The petition stated, that the petitioners held two bills for 30007. each, drawn by Williams upon D. E. and A. Acraman, the one due on the 13th March, 1842, and the other due on the 13th April in the same year. That, on the first bill becoming due, application was made to renew, and ultimately it was arranged that the bill for 30261. 6s., drawn by the firm of Ď. E. and A. Acraman upon, and accepted by, Acramans, Morgan, & Co., should be given in lieu of the bill then due. That, upon the receipt of this fresh bill, the managers of the bank wrote to Messrs. D. E. and A. Acraman, purposing to inclose the overdue bill for 3000l., but by mistake enclosed the other bill, which was due on the 13th April; that the same had not been returned to the petitioners, and that the overdue bill, which should have been sent, was now in their hands. The petition also stated, that an agreement had been entered into between Williams and Messrs. D. E. and A. Acraman with reference to the consignment of goods by Williams to the Acramans; and that, at the time of the bankruptcy of the Acramans, they had in their possession a large quantity of such consignments, of which their assignees took possession; and that, subsequently, an arrangment was entered into between Williams and his creditors, to which the assignees of D. E. and A. Acraman and the petitioners were parties, whereby it was agreed that Acramans' assignees should give up their lien on the goods, and Williams should pay to them and the petitioners 4s. 6d. in the pound on their debts; which composition they had received. Russell and Bagshawe, for the petitioners, contended, that, the bill having been sent by mistake, and there being no dispute about the facts, the order was almost of course for proof; that the special circumstances set out in the petition took the case out of the ordinary rule in bankruptcy; that payment before proof must be deducted from the amount for which proof was sought, and cited Re Plummer, (1 Phil. 56). The question upon the other bill must stand over to answer the affidavits. Bacon and Roxburgh, for the assignees of D. E. and A. Acraman, did not oppose the order for proof on the missing bill, the petitioners giving proper indemnity. On the other point, the case of Re Plummer was an authority in favour of the ordinary rule, inasmuch as in that case the conversion of the security, and consequent part-payment of the debt, took place after a tender of the proof to the commissioner, and pending an appeal against the rejection by the commissioner. The CHIEF JUDGE.-I am of opinion, that, the bi of exchange having been sent to the bankrupts befor their bankruptcy, and retained by them, this is not case in which security or indemnity ought to be re quired. The order will therefore be, that the pet tioners shall be at liberty to prove on the 3000%. bil without producing it, for the amount, less so much a the commissioner should find to have been paid in re spect thereof before the claim. The petition to stan over as to the second bill. Swanston and Selwyn, for the assignees of Messrs Acraman, Morgan, & Co., claimed their costs of the petition, so far as related to the lost bill, with which they had nothing to do, although they had been serve with the petition, and appeared. Russell and Bagshawe opposed the claim.-The addi tional matter in the petition did not amount to half page, and the costs had not been at all increased by th introduction of it, so far as those assignees were con cerned, they having the principal interest in the othe question raised by the petition. Bacon and Roxburgh resisted the payment of an costs by them, and claimed to be paid their costs b the petitioners. The CHIEF JUDGE.-The assignees of Messrs. Acr man, Morgan, & Co. must have their costs against th estate of Ď. É. and A. Acraman, or the petitioners, far as such costs have been increased by so much of th petition as seeks to establish a proof on the lost bil The ultimate disposal of the costs, as between the a signees of Messrs. D. E. and A. Acraman and the p titioners, must be reserved. Ex parte HENBURY, re CAVENDISH.-Feb. 2. Practice-Costs of the Solicitor to the Fiat-Fees of 20 and 101. under Stat. 1 & 2 Will. 4, c. 56. Where the Fees due to the Official Assignee of a Ban rupt and to the Messenger had been duly paid, but 1 Creditors' Assignees had been chosen, and it was n likely that any would be chosen, the Solicitor to the Fi petitioned for Payment of his taxed Costs out of a Su of Money, less than enough to pay the Fees of 101. a 201., then standing in the Name of the Accountant: Bankruptcy; but the Petition was dismissed. Forster applied in this case for payment of the tax costs of the solicitor to the fiat, out of a sum of 27 standing to the credit of the bankrupt's estate, in th name of the accountant in bankruptcy. The fees 207. and 10%., directed by the 1 & 2 Will. 4, c. 56, to b paid immediately after the choice of assignees, had no been paid, no assignees having been chosen, and ther being no probability that any ever would be choser The bankrupt had obtained his certificate in Novembe last, and the solicitor had as yet received nothing o account of his costs; but the fees to the official assigne and to the messenger had been paid. The CHIEF JUDGE said, that Mr. Ayrton, the Regis trar, informed him, that the Lord Chancellor had int mated that he was of opinion that the solicitor's bi was not payable out of the bankrupt's estate until afte payment of the fees of 10%. and 20%, directed by th 1 & 2 Will. 4 to be paid. His own opinion had alway been, that, the language of the act being obscure, effe ought not to be given to a fiscal regulation in favour the public treasury, to the detriment of the solicitor however, he felt bound by the opinion of the head the Court. The petition, therefore, must be dis missed. th Note.-Several similar cases abide the result of the decisio in this case. both reported in the last number of De Gex's Reports, In Ex parte Teague and Ex parte Hopkins Chief Judge ordered the solicitor's bill to be paid in priori to the fees. See also Ex parte Buchanan, (10 Jur. 624); E parte Nicholls, (Id. 482); and Ex parte Jerwood, (Id. 812) PRIVY COUNCIL. [Before Lords BROUGHAM and LANGDALE, The Judge of the Admiralty Court, and The Chancellor of the Duchy of Cornwall. neral had no right to appear or to be heard, and refused› the motion. The grounds on which the Court de * As this appeal was argued ex parte, it is thought right that the reasons of the Court below should appear fully; the reporter, therefore, inserts the judgment delivered on that occasion, but [Appeal from the equity side of the Supreme Court of on a subsequent day, by Sir Edward J. Gambier, C. J., which Madras.] THE ATTORNEY-GENERAL v. BRODIE.-Dec. 15. Colonial Courts of equitable Jurisdiction, like our Courts of Chancery, unless more limited by the Terms of the Charter, have a general Jurisdiction over Charities; and in this Case the Advocate-General of Madras was declared entitled to represent the Crown as Parens Patria. Semble, in all Cases of Charities the Crown should be represented. The questions which were brought before the Court upon this appeal were, first, whether the AdvocateGeneral of Madras has or has not a right to appear on behalf of the Crown in charity matters; secondly, whether the Courts of equitable jurisdiction in India have control over charities similar to that exercised by the Court of Chancery in this country. The question arose in the following manner:- Petrus Uscen, an Armenian merchant, by his will, dated January, 1750, bequeathed 1000 pagodas to his executors to keep in repair a certain bridge which he had built upon the river at St. Thomas's Mount, and the stairs thereat. He died in the year 1756. In January, 1805, an information was filed in the Supreme Court of Madras against William Douglas Brodie and the other persons in whom the bequest was then vested, praying that the eharitable bequest might be settled and established, and the trusts of the will performed. That information commenced as follows:-"Informing sheweth unto your Lordships, his Majesty's Attorney-General, at and by the relation of George Westcott, Esq., and others." And it was signed, "For his Majesty's Attorney-General-Alexander Anstruther." Mr. Alexander Anstruther was at that time Advocate-General at Madras. A decree was made upon that information, and the money vested in the names of new trustees. Several orders were afterwards made in the suit, on the motion of the Advocate-General; but, from the year 1817 down to the year 1843, no proceedings were taken in the suit. In July, 1843, a party, a stranger to the suit, presented a petition intitled in the cause, stating that all the trustees were either dead or had left India; that he had expended sums of money in repairing the said stairs; that they were still out of repair; praying that the interest which had accumulated might be paid to him for that purpose. On the 28th July, 1843, upon the petitioner's counsel opening the petition, Mr. Advocate-General Norton informed the Court that he had received no notice of the petition, and claimed, on the part of her Majesty's AttorneyGeneral, a right to appear and oppose the petition if he should deem it expedient; but the Supreme Court decided that he had no legal right in his capacity of Advocate-General to such notice, or to be heard in the matter. On the 7th August, 1843, a motion was made on behalf of the petitioner, when the Advocate-General again claimed to be heard; but the Court, without hearing him, made an order upon the motion. On the 2nd October, 1843, the Advocate-General moved that the order of the 7th August might be set aside for irregularity: first, because the petitioner had no right or interest in the suit, or in the funds; secondly, because no notice had been served on the Advocate-General; thirdly, because any further proceedings in the suit ought to originate on behalf of the Crown, and on the motion of the Advocate-General. The Supreme Court, upon that motion, determined that the Advocate-GeVOL. XI, g was as follows:-First, as to the order of the 7th August, 1843, Mr. Justice Norton and myself both considered the suit so defective in its existing state, for want of proper parties before the Court, that we thought we ought not to accede to the general prayer of the petition of the 28th July, 1843. We agreed, however, that, for the purpose of rendering the fund in court a productive one, instead of permitting it to remain, without carrying interest, the Court might certainly take upon itself to make the order in question; and I thought, that, if the Court had no jurisdiction to issue such order as a command, which the Accountant-General would be bound to obey, it might send it to him as a direction, which he would be ready to follow, and which it was a matter of public advantage to have carried into effect. The blending of the two legacies in a single fund appears to have occurred in the year 1757, and to have continued ever since. It is undoubtedly an error, but it is one which may be corrected whenever a suit properly framed comes before the Court. Secondly, as to the determination of the 2nd October, 1843. On the question being raised by the Advocate-General on that occasion, as to his right to appear on behalf of the Crown in the present suit, he admitted at the bar, that the Crown had no pecuniary interest in the matter. I have always been of opinion, that the right of the Advocate-General to represent the Crown, under stat. 53 Geo. 3, c. 155, s. 91, is confined to matters involving in. terests of that description, and that it does not embrace those functions which the Attorney-General discharges for the pur. reign as parens patriæ. And I also am of opinion, that, even pose of enforcing the prerogatives which belong to the Soveif the statute could be construed as conferring powers to act on behalf of the Crown in the superintendence of charities, there exists in this country no jurisdiction to which such powers can be made to attach. My opinion on this latter point is formed upon the following considerations: -The jurisdiction of the Court of Chancery in matters of charity, except so far as it can be exercised under the head of trusts, fraud, &c., is quite distinct from its general jurisdiction as a Court of equity. In the 3 Com., p. 47, Blackstone speaks of the Lord Chancellor's office in the following terms:-" He is the general guardian of all infants, idiots, and lunatics, and has the general superintendence of all charitable uses in the kingdom, and all this exercises in his judicial capacity in the Court of Chancery." over and above the vast and extensive jurisdiction which he In Story's Equity Jurisdiction, (vol. 2, p. 399, 2nd edition), are the following passages :-"There are many cases in which the jurisdiction exercised over charities in England can scarcely be said to belong to the Court of Chancery as a court of equity, and where it is to be treated as a personal delegation of authority to the Chancellor, or as an act of the Crown through the instrumentality of that dignitary.. The jurisdiction exercised by the Chancellor, under the stat. 43 Eliz. c. 4, over charitable uses, is held to be personal in him, and not exercised in virtue of his ordinary or extraordinary jurisdiction in ercised by him in cases of idiots and lunatics, which is exerChancery, and in this respect it resembles the jurisdiction excised purely as the personal delegate of the Crown." Attorney-General v. Lady Downing, (Wil. Cas. & Op., p. 24), Wilmot, C. J., says, "that the king, as parens patriæ, has the superintending power over all charities abstracted from the statute of Elizabeth, and antecedent to it, and that that paternal care and protection is delegated to the Court of Chancery. No Court of equity, by virtue of its general powers as such, exercises this superintending control over charities; if it did, then a charitable jurisdiction would have been one of the equitable functions of the Court of Exchequer; but, in 3 Black. Com. 426, 427, it is mentioned as one of the circumstances which in his time distinguished the Court of Exchequer from the Court of Chancery, that the latter possessed this auGeo. 3, c. 101, and 59 Geo. 3, c. 91, that a charitable juristhority, and the former did not. It is only by the stats. 52 diction was given to the Court of Exchequer. The right to file informations in the name of the Attorney-General for the establishment of charities nowhere appears to have been exercised, except before that Court to which the Crown had dele In The |