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There is an old statute of 6 Anne, c. 18 (c. 72 in the revised 6 Anne, edition of the statutes), which provides that when lands are held pur autre vie, i.e., for the life of another (see ante, p. 29, et seq.), any person entitled in reversion or remainder may, on affidavit proving his title and stating his belief that the cestui que vie is dead, and his death concealed, once a year obtain from the Lord Chancellor, &c., an order for the production of the cestui que vie. In default, the cestui que vie is to be taken to be dead, and the claimant may enter. In one case this order was made for production at the porch of the parish church; in another before commissioners at Brussels; in a third at the Middle Temple Hall; and in one of the most recent cases at the bar of the Court at an appointed time (1).
It has been decided that the Court has power to make an order for the production of a cestui que vie, as well upon a person having an interest determinable on a life, as on a person having an estate pur autre vie strictly so called (2).
Sect. 33 of the Fines and Recoveries Act (3 & 4 Wm. 4, 3 & 4 Wm. c. 74 (ante, p. 35)), appoints the Lord Chancellor in cases of 4, c. 74. lunacy, &c., and the Court of Chancery, in cases of treason felony and some other cases, protector of the settlement.
LANDS CLAUSES CONSOLIDATION ACT, 1845 (8 & 9 VICT. c. 18),
Another Act which conferred a special jurisdiction on the Chancery Courts is the Lands Clauses Consolidation Act of 1845 (8 & 9 Vict. c. 18) (3). Prior to the passing of that statute, when railway or other companies or public bodies obtained special Acts of Parliament authorising them to acquire lands for the purposes of their undertakings or works of a public character, it was usual to insert in each private Act such special powers
(1) Re Castledine, 44 L. T. (N.S.) 469. It was decided in Mayrick v. James, 23 Beav. 449, that the Master of the Rolls had no jurisdiction under this Act, and it would seem probable that the jurisdiction has been transferred to the High Court of Justice: Seton on Decrees, p. 1279. In all the cases, however, which have been reported on the subject since the Judicature Act, Re Owen, 10 Ch. Div. 166; Ex parte Castledine, ubi sup.; Re Thomas Stevens, 31 Ch. Div. 320; Ex parte Dashwood and Paget, W. N. (1888) 139; In re Pople, 40 Ch. D.
589, the applications have been made
(2) In re Stevens, 31 Ch. D. 320;
(3) Amended by 23 & 24 Vict. c. 106, and 32 & 33 Vict. c. 18; and see, as to the very numerous cases which have been decided on this subject: Morgan & Wurtzburg's Chancery Acts and Orders, p. 38, et seq.; Daniell's Chancery Practice, 6th ed., p. 2137; see also Docker v. Greaves, 33 Ch. D. 607, and the very important decision, Re Mills, 34 Ch. D. 24.
and provisions as were deemed necessary for the acquisition of the requisite land. The object of the Lands Clauses. Consolidadation Act. tion Act, as we are told in its preamble, was twofold: (1) to avoid the necessity of repeating such provisions in each of the several Acts relating to such undertakings; and (2) to introduce greater uniformity into the provisions themselves.
The principal sections of the Lands Clauses Consolidation Act, 1845, so far as our present subject of the jurisdiction of the Chancery Division is concerned, are sects. 1-4, dealing with definitions and preliminary matters; sect. 69, which deals with purchase-money or compensation, where the parties entitled to the land in question have limited interests or are prevented from treating or making title; sects. 69–79, dealing with the application, investment, &c., of the purchase-money or compensation coming to parties having limited interests; and sect. 80, dealing with costs.
Under this Act the Court has power to order payment by the promoters of the undertaking: (1) of all costs of the purchase or taking the land and consequential thereon, except such costs as are otherwise provided for; (2) costs of interim investment; (3) costs of permanent investment and payment out, including not only successive re-investments, but even bonâ fide abortive attempts to invest; (4) costs of all proper orders; (5) costs of all proceedings relating thereto, except such as are occasioned by litigation between adverse claimants, including costs arising from the land taken being subject to suit or incumbrances, or belonging to persons under disability.
The provisions of the Lands Clauses Consolidation Act are in some cases wholly, in others partially, incorporated in a large number of public statutes of great importance, among which may be noticed the Defence Acts, 1842, 1860, and 1864, under which Her Majesty's Secretary of State for War is enabled to obtain lands for the defence of the realm; the Elementary Education Act, 1870, the Artizans' Dwelling Acts, 1875, 1882, the Electric Lighting Act, 1882, Housing of the Working Classes Act, 1890.
By Order LV. r. 2 (7) of the Rules of the Supreme Court, 1883, amended by Rules of the Supreme Court, December, 1885, all applications for interim and permanent investment, and for payment of dividends under the Lands Clauses Consolidation Act, 1845, "and any other Act" whereby the purchase-money of any property sold is directed to be paid into Court, are to be made by summons in chambers.
THE TRUSTEE RELIEF ACTS, 1847 AND 1849.
These Acts (10 & 11 Vict. c. 96, amended by 12 & 13 Vict. c. 74) enable trustees, executors, administrators, or other persons, who have in their hands any moneys "belonging to any trust whatsoever," or the major part of them, on filing an affidavit shortly describing the trust according to the best of their knowledge and belief, to pay money or transfer stock into Court with the privity of the Paymaster-General, substituted for the Accountant-General by 35 & 36 Vict. c. 44 (the Court of Chancery Fund Act, 1872). Formerly the Court dealt with the fund thus paid in on petition, but now (by Order LV. r. 2, sub-r. 5, Rules of Supreme Court, 1883), all applications under the Trustee Relief Acts, where the money or securities in Court do not exceed £1000 or £1000 nominal value, are to be made by summons at chambers. Even where the funds exceed £1000 in cases where the title only depends on proof that the party entitled has attained twenty-one years of age, it has been decided that the application ought to be by summons (1). Order XXXVIII. r. 1, of the County Court Rules, 1886, provides that applications in the County Courts under the Trustee Relief Acts are to be by petition.
Sub-sect. 6 of the 25th sect. of the Judicature Act, 1873, which Judicature deals with the assignment of debts and choses in action, conAct, 1873, sect. 25, cludes with a proviso that if the debtor, trustee, or other person sub-sect. 6. liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and in conformity with the provisions of the Acts for the relief of trustees (2).
(1) Re Broadwood, 55 L. J. (Ch.) 646. It would seem that in any case of real difficulty the costs of a petition will be allowed, even if the application might have been made by summons. But the mere fact that the fund exceeds £1000 is not sufficient to justify the presentation of a petition: Bates v. Moore, 38 Ch. D. 382; commenting on Re Rhodes, 31 Ch. D.
(2) See as to payment into Court by banking and insurance companies: Re Haycock's Policy, 1 Ch. Div. 611; Matthews v. Northern Assurance Co., 9 Ch. D. 80; Re Sutton's Trusts, 12 Ch. Div. 175. It would seem that under the provisions of the Judicature Act, cited above, in cases of absolute assignments insurance companies have now the option of paying the money into Court in conformity
Where infants are interested, recourse may be had to the Legacy Duty Act (36 Geo. 3, c. 52); and Order LV. r. 2 (4), Rules of the Supreme Court, 1883, provides that in cases under this Act, where the money or securities in Court do not exceed £1000 or £1000 nominal value, the application ought to be made by summons. The late Master of the Rolls, speaking in the year 1878, laid it down that as a general rule, in doubtful cases, trustees ought to take the opinion of the Court on summons, and now under the present practice, it is comparatively seldom expedient to pay money into Court under the Trustee Relief Acts, as Order LV. r. 3 (d) and (g), expressly enables questions with regard to the payment of money into Court by executors, administrators, and trustees, and the determination of any question arising in the administration of an estate or trust, to be dealt with on "originating summons" (post, p. 779). The practice as to lodgments under the Trustee Relief Acts is now regulated by Supreme Court Fund Rules, 1886, r. 41.
In a case where a question arose as to who were entitled as next of kin to shares of residue, and the trustees paid such shares into Court under the Trustee Relief Acts, the Court considered that the proper course would have been to take out an originating summons under Order LV., and thus obtain the requisite inquiry. "A case" (1), said the judge, “may be imagined where the residue is divisible into twelve shares, and one of the shares lapses. Are the persons entitled to the other eleven shares to wait until a very difficult inquiry as to the next of kin entitled to the twelfth share is worked out? But then, I think, the answer to that is simple. They need not wait. It is easy enough for the trustees to ascertain approximately the amount of the shares, and to set apart a fund to answer and pay the costs of ascertaining the next of kin, or if any difficulty should arise, then the trustees can come to the Court at once and ask the Court to ascertain the fund for them, or tell them what they ought to pay over, or if they ought to pay over anything, and thus act by the direction and under the sanction of the Court. It is quite easy to do that by means of an originating summons under Order LV."
with the provisions of the Trustee Relief Act, even though there be no trust, and with precisely the same risk as to costs as if they were in
dividual trustees: Brett's Leading Cases in Equity, p. 265.
(1) Re Giles, 34 W. R. 712.
THE TRUSTEE ACTS, 1850 AND 1852.
These Acts (13 & 14 Vict. c. 60, and 15 & 16 Vict. c. 55), which were formerly of very great, and still are of considerable importance, enable the Chancery Division to appoint new trustees and to make vesting orders as to lands, stocks, and choses in action.
The whole scope of the Acts, as was stated in a leading case on the subject (1), is to embrace every case of inconvenience that can possibly arise and calls for a remedy. They provide for cases: (1) where trustees or mortgagees or their respective representatives are lunatics or of unsound mind; (2) where trustees or mortgagees are infants; (3) where sole trustees, &c., are out of the jurisdiction of the Court or cannot be found; (4) where two trustees die and it is uncertain which of them was the survivor ; and several other cases, including even provision for the contingent rights of unborn persons who might become trustees. There is also a sweeping provision (contained in sect. 32 of the Act of 1850 and sect. 9 of the Act of 1852) enabling the Court to appoint trustees either in addition to or in substitution for other trustees, or even if there be no trustee at all, whenever it shall be expedient so to do, and whenever it shall be found "inexpedient, difficult or impracticable" so to do without the assistance of the Court (2).
Applications under these Acts are still occasionally made, but they are comparatively unfrequent, very great innovations having been introduced into the law upon this subject by the Conveyancing Act of 1881 (see ante, p. 535). The power which is conferred by that Act arises in the following six events, viz., in case the trustee, whether original or substituted, (1) is dead; or (2) remains out of the United Kingdom for more than twelve months; or (3) desires to be discharged from the trusts; or (4) refuses to act; or (5) is unfit to act; or (6) is incapable of acting in the trusts. And an early decision upon the Act laid down the rule that whenever the power given by the Conveyancing Act can be exercised, a petition ought not to be presented (3).
LORD ST. LEONARDS ACT (22 & 23 VICT. c. 35).
This Act (s. 30) enabled trustees, executors, or administrators to obtain the opinion of the High Court of Chancery (now the
(1) Bristow v. Booth, L. R. 5 C. P. 80, 91.
(2) Re Tweedy, 28 Ch. Div. 529. (3) Re Gibbon, 30 W. R. 287.