costs. In Attorney-general v. Lord Ashburnham (m), Sir J. Leach, V. C., said, in reference to the asserted principle that the Crown can neither pay nor receive costs, "I find no such principle in Courts of Equity. The Attorney-general constantly receives costs, where he is made a defendant in respect of legacies given to charities (n); and even where he is made a defendant in respect of the immediate rights of the Crown in cases of intestacy, and where charity informations have been filed by the Attorney-general, costs have been frequently awarded him in interlocutory matters, independently of the relator." It should be remembered here, that in the case of Attorney-general v. Dickson, referred to by Mr. Beames, in his " Summary of the Doctrine of Costs in Equity," page 83, n. 2, as being sub judice, in which the question was, whether the Crown, in the case of a simple contract debtor to it, can pay or receive costs, has since been decided, and that no costs were given to the Crown, although the demurrer was in its favour (o). Of Relators. in cases of cha rities. The propriety of naming a relator for the purpose of his being Usually named answerable for costs, and the oppression arising from a contrary practice, were particularly noticed by Baron Perrot, in a cause in the Exchequer, Attorney-general v. Fox (p), in which case no relator was named; and though the defendants finally prevailed, they were put to an expense almost equal to the value of the property in dispute. The introduction of a relator, however, in cases in which the information is merely concerning the rights of the Crown, is a mere act of favour on the part of the Crown and its officers; and it appears to have been the opinion of Lord Eldon that, even in informations concerning charities, the introduction of a relator was an indulgence on the part of the Crown, which though usual might be withheld. In the Matter of the Bedford Charity (q), in speaking of informations concerning charities, his Lordship said, that "there is no doubt, that though a relator is commonly required for the purpose of securing costs, the Attorney-general may, if he pleases, proceed without a relator." This dictum (m) 1 S. & S. 394. (0) 1 Sim. & S. arg. 395. (n) Moggridge v. Thackwell, 7 (p) Ld. Red. 19. Ves. 36. 88. (q) 2 Swan. 520. But not abso lutely necessary. Semble. Of Relators. Who may be appears to be at variance with the opinion of Lord Thurlow, in the Attorney-general v. Oglander (r), in which his Lordship is reported to have expressed his belief that an information without a relator would not do; and the opinion of Lord Thurlow upon this point appears to have been adopted by Lord Redesdale (s). But it is worthy of remark that in the cases which are referred to as authorities upon this subject in the margin, of Attorney-general v. Oglander, the point does not appear to have arisen (t); and with respect to another case, referred to by the Annotator upon Mr. Vesey's Reports (u), to show the necessity of there always being a relator, it is to be observed, that it was a case arising upon a plea of outlawry in the relator, which was held to be a good plea; but the decision was given upon the ground that, although the Attorney-general was plaintiff, yet the relator was to have the whole benefit or loss of the suit, and was himself a party to it, for it would abate by his death, &c., and the King's name was only made use of by the form of the Court, and he was not directly concerned at all, and very little by consequence, and the suit was not for the King's duty, but for the relator's interest. Upon the whole, therefore, it seems, that although in cases of informations for charities, the general and almost universal practice is to have a relator for the purpose of answering the costs, yet the rule is not imperative; and the Attorney-general, as the officer of the Crown, may, in the exercise of his discretion, exhibit such an information without a relator. In confirmation of this it is to be observed, that in informations under the statute (x), for giving additional facilities in applications to Courts of Equity regarding the management of estates or funds belonging to charities, it is not the practice to have a relator. All persons, who are not under any of the legal disabilities after mentioned, may be relators in informations concerning charities; and it seems that dissenters may fill that character for dissenting charities (y), and that the maintenance of a Pro(r) 1 Ves. J. 246. (s) Ld. Red. 78. (t) Attorney-general v. Smart, 1 Ves. 72; Attorney-general v. Middleton, 2 Ves. 327. (1) Attorney-general of the Duchy v. Heath, Prec. in Ch. 13. (x) 59 Geo. 3, c. 91, continued and extended by 2 Will. 4, c. 57. (y) Attorney-general v. Lord Dudley, Cooper, 146. testant dissenting chapel is considered a charitable institution Of Relators. for this purpose (z). terested. It does not appear to be required in cases of charities, that Whether they the relator should be personally interested in the charity, though ought to be infrom what was said by Lord Hardwicke in Attorney-general v. Bucknall (a), it appears that some interest in the relator, however remote, was considered necessary. Lord Gifford (M. R.), however, in Attorney-general v. Vivian (b), says, "whatever opinions may have been previously entertained upon this subject, I conceive it is not necessary for relators to have any interest in the subject of the suit." If an information is exhibited at the relation of a person not interested in the charity, and it appears that there is ground for the interference of the Court, though he is mistaken in the relief prayed, the Court will take care, at the hearing, to decree in such a manner as will best answer the purposes of the charity (c), even though the specific relief prayed by the information is refused (d). But it seems that where a person who, in the event of a particular construction of the will or deed by which the charity is founded being considered correct, would be personally interested in the charity, files an information in which he is the relator, insisting upon that construction, and praying relief accordingly, but fails in establishing his case, the information will be dismissed. Thus where a question arose between two charities, one for poor people in a particular parish, and the other for poor widows in an almshouse, concerning the right to a legacy given by a will in which there were descriptions applicable to both, and an information was filed at the relation of the latter, the Lord Chancellor (Lord Thurlow) dismissed the information because the relators had no title (e). () Attorney-general v. Fowler, 15 Ves. 85. (a) 2 Atk. 328. (b) 1 Russ. 236. In this respect an information differs from a petition under the 52 Geo. 3, c. 101, as persons presenting petitions under that Act must, according to the opinion expressed by Lord Eldon in the case of the Bedford Charity, 2 Swanst. 518, have an interest in the charity. (c) 2 Atk. 328. (d) Per Lord Eldon, in Attorneygeneral v. Whitely, 11 Ves. 247; Vide etiam Attorney-general v. Scott, 1 Ves. 413; Attorney-general v. Mayor of Stamford, 2 Swan. 591; Attorney-general v. Parker, 1 Ves. 43; Attorney-general v. Smart, 1 Ves. 72; 2 Ves. 426; Attorney-general v. Bolton, 3 Anst. 820. (e) Attorney-general v. Oglander, 1 Ves. J. 246. Effect of their being interested upon the Suit. Of Relators. Whether an Outlaw can be a Relator. If, however, a person files an information as a relator, claiming the benefit of the charity for himself, and insisting upon his claim under a title as to which it appears that he is mistaken, though he be found to be entitled under another title upon which he does not insist, a decree will be made. Thus, where the curate of a chapel filed an information in the name of the Attorney-general, in which he himself was the relator, claiming the benefit of an augmentation under the 29 Car. 2, c. 8, and the relator founded his case on a right of nomination in the rector, but the defendant proved a right of nomination in the vicar, by whom the relator had been nominated, it was insisted, that though a right was in the relator, yet he must recover according to the right he had set up; but Lord Hardwicke was of opinion, that although if it had been a bill by the curate in his own name, he never could have made a decree to establish a right appearing in him contrary to that set up, yet this, being an information in the name of the Attorney-general, is an answer to that also; for though such an information to establish a charity is mistaken in the circumstance of laying it, yet if it appears that there is a charity, and the right appears in the whole cause, that information cannot be dismissed, but a decree must be made to establish that charity (f). This doctrine, his Lordship observed, "has been frequently laid down in this Court and allowed, because it is considered as a proceeding by an officer of the Crown; and as the King is pater patriæ, the information therefore must not be dismissed: so that though the relator has mistaken his title, however in the cause a title comes out for him and his successors, he must have that title established” (g). There is a case in the Precedents in Chancery (h), where a plea of outlawry in disability of the person of the relator in an information, is said to have been allowed in the Duchy Court of Lancaster. But upon reference to the case, it will be seen that it was the case of an information by the Attorney-general, (f) This rule only applies when it is a charity instituted by a private person, not to cases of charities incorporated by royal charter under the great seal, for they are already esta blished. Attorney-general v. Middleton, 2 Ves. 328. (g) Attorney-general v. Brereton, 2 Ves 425. (h) Attorney-general of the Duchy of Lancaster v. Heath, Prec. Ch. 13. at the relation of a part owner of coal mines against the other part owners, praying that the defendants might contribute towards certain expenses which the relator had been put to in draining and improving the mines, without which they could not be wrought, so the King would lose his duty; so that in fact the relator was the substantial plaintiff in the suit, and the King's name was only made use of as a matter of form, "the Crown not being directly concerned, and only very little as a matter of consequence." Indeed, the relator is stated in the report to have been himself a party to the suit, so much so that it would have abated by his death. From the above case it appears, that where a relator himself claims an interest in the subject matter of the suit, and proceeds by bill as well as by information, making himself both plaintiff and relator, the suit will abate by his death. Where, however, the suit is merely an information, the proceedings do not abate by the death of the relator (i), they can only abate by the death or determination of interest of the defendant (k). If there are several relators, the death of any of them, while Proceedings there survives one, will not in any degree affect the suit; but thereupon. if all the relators die, or if there is but one, and that relator dies, the suit is not abated, but the Court will not permit any further proceedings till an order has been obtained for liberty to insert the name of a new relator, and such name is inserted accordingly, otherwise there would be no person to pay the costs of the suit in case the information should be deemed improper, or for any other reason should be dismissed (7). Where, however, a relator dies, the application for leave to name a new relator must be made by the Attorney-general, and not by the defendant, otherwise the defendant might choose his own prosecutor (m). on behalf of natics. With respect to informations on behalf of idiots and lunatics, Informations it seems that it is not only necessary that the lunatic should idiots and lube a party, but it is also requisite that there should be a relator who may be responsible to the defendant for the costs of the suit. Thus in the case of the Attorney-general v. Tyler, Must be by a Relator. |