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Review : Tudor on the Charitable Trusts' Act, 1853. has received in our Courts of Justice, present | Gladstone, 1 Ph. 290), and of Roman Catholic a striking contrast to the favour which charities priests (Attorney-Generalv. Gladstone, 13 Sim, receive when the subject-matter of the gift con- 7; 1 Ph. 290), is valid. And it has been held. sists of pure personalty.

that a bequest enabling people of the Jewish “ It must however be remembered that the religion to observe its rites is good (Straus v. Law of Charitable Trusts, independent of that Goldsmid, 8 Sim. 614).” Statute, was principally moulded into shape by ecclesiastical tribunals, and that the Statute It may be useful to place before our was the work of a Legislature in which the readers the summary given by Mr. Tudor lay element predominates, and was intended to of the Mode of Procedure under the new arrest what was declared to be a public mis-Act:chief, which had of late greatly increased, by many large and improvident alienations or

“ It has conferred on the Commissioners dispositions, made by languishing and dying power to inquire into charities, to give advice persons or others, to uses called charitable to trustees seeking it, and to authorise the inuses, to take place after their deaths, to the dis- stitution or compromise of proceedings which herison of their lawful heirs.'

will, it is to be hoped, be most beneficially ex.

ercised in carrying out the intentions of the Of a superstitious as distinguished from founders of charities in the mode most useful a charitable use, Mr. Tudor observes that to the country at large. It has also provided the former has been defined generally to a more economical forum when the funds of be

the charity are below a certain amount, and has

done much to render proceedings in the Court “One which has for its object the propaga- of Chancery of a more summary and less exgation or the rites of a religion not tolerated pensive character.” by the law' (Boyle, 242). The Statutes relative "Power is given to the Board to inquire into to superstitious uses are, 23 Hen. 8, c. 10, 1 charities in England and Wales, and to cause Ed. 6, c. 14, and i Geo. 1, c. 50, under which examinations and inquiries to be made by their it has been decided, that bequests for establish- inspectors together or separately, who are to ing a Jesuba, or assembly for instructing the report their proceedings to the Board (sec. 9); people in the Jewish religion (Da Costa v. De and the Board may require from trustees and Pas, Amb. 228); for the maintenance of Ro- others concerned therein, accounts and state

tholic monasteries or other establish- ments in writing in relation to any charity, and ments at home or abroad (De Graciai v. Law- may also require such trustees and persons to son, 4 Ves. 433, n.); for the purpose of main- return answers in writing to any questions or taining Roman Catholic priests (Gates v. Jones, inquiries addressed to them by the direction of cited 2 Vern. 266); to be applied to such pur- the Board (sec. 10). All officers having the poses as a superior of a nunnery or her suc- custody of enrolments, decrees, etc., relating to cessor should judge most expedient (Smart v. any charity, are to furnish copies or extracts to Prujean, 6 Ves. 560), are void. So a bequest the Board; and every inspector, secretary, and for masses, for prayers for a person's soul other officer of the Board, may search the re(West v. Shuttleworth, 2 M. & K. 684 ; Altor- gisters and records of every Court, and every ney-General v. The Fishmongers' Company, 2 public registry and office of records and take Beav. 151; 5 M. & Cr. 11); for disseminating copies and extracts therefrom without fee (sec. Roman Catholic doctrines, either for the edu- 11); and any inspector under the authority of cation of the children of the poor (Crofts v. the Board may, by precept, require the trustees Evetts, Mo. 784; Attorney-General v. Power, of any charity, etc., to attend for examination, 1 Ball & B. 145; Cary v. Abbot, 7 Ves. 490); and to produce deeds, etc. and documents reor for the purpose of maintaining a Roman Ca- lating to the charity, and he may examine them tholic priest (The Attorney-General v. Todd, 1 upon oath, and all persons voluntarily attendKeen, 803 ; and see De Themmines v. De Bon- ing before him (sec. 12), persons giving false neval, 5 Russ. 288), has been held void. How- evidence, are to be guilty of a misdemeanour ever, by the Statute 3 & 4 Wm. 4, c. 115, (sec. 13); and any person who shall refuse or which is retrospective (Bradshaw v. Tasker, 2 wilfully neglect to render to the Board any ac. M. & K. 221), except as to suits previously count or statement, or to answer questions and commenced (Attorney-General v. Todd, 1 Keen, inquiries, or to attend any lawful precept of 803), persons professing the Roman Catholic any inspector, or to give evidence before him, religion are put upon the same footing with re- or shall wilfully alter, destroy, withbold, or respect to their schools, places for religious wor- fuse to produce any deed, etc:, or document, is ship, education, and charitable purposes, as to be taken to have been guilty of a contempt Protestant Dissenters, subject however to the of the High Court of Chancery (sec. 14). provisions of the Mortmain Act (9 Geo. 2, c. Neither the Board nor their inspectors are to 36). This Statute, coming after the 10 Geo. 4, have any power over persons holding or claim. c. 7, which relieved the personal disabilities of ing to hold any property whatsoever adversely Roman Catholics, has very materially altered to the charity, or free or discharged from any the law upon this subject. Accordingly, it has charitable trust or charge (sec. 15). been decided, that a legacy to be applied to the “ The Board is to receive and consider all use of a Roman Catholic College (Walsh v. applications for their opinion or advice respect

257

Review : Tudor on the Charitable Trusts' Act, 1853. ing any charity; and persons acting thereon gross annual income of charity in the County will be indemnified against the retrospective Palatine of Lancaster exceed 301., the Chaneffect of any judicial order, unless he has been cellor and Vice-Chancellor thereof to have the guilty of fraud in obtaining such opinion or jurisdiction given to the Master of the Rolls advice (sec. 16).

and Vice-Chancellors sitting in Chambers “ Notice in writing of any proposed proceed- (sec. 29). The provisions as to charities exings relative to charity, is to be transmitted to ceeding 301. per annum to extend to charities the Board, who may by certificate authorise in the city of London not exceeding 301. (sec. the same, or such as they may think proper ; 30); the Lord Chancellor, with the advice of and Courts are not to entertain proceedings as the Master of the Rolls and Vice-Chancellors, to charities, except upon and in conformity or two of them, to make general orders reguwith the certificate (sec. 17). But the powers lating applications at Chambers” (sec. 31). of the Attorney-General acting ex officio are District Courts of Bankruptcy and County not to be affected (sec. 18).

* Upon the report of an inspector, the Courts are to have jurisdiction in cases of Board may authorise proceedings where no no

charities, the incomes of which do not extice had been given to them; and the Board ceed 301. (sec. 32). may, before giving any opinion, or making an “But it is not to be exercised by a deputy order or certificate after notice, cause local in- sitting for a County Court Judge (sec. 33); quiries to be made by an inspector, and deposit and where two or more Couris have concurhis report for local inspection, and consider rent jurisdiction, the Board is to direct to which any objections thereto (sec. 19). * The Board may certify cases to the Attor- and the Board may direct applications as to

Court applications are to be made (sec. 34); ney-General, who may thereupon, if he think

a charity within the jurisdiction of a District or fit, institute legal proceedings in Chancery, or County Court, to be taken before a Judge of before a Judge at Chambers, or a District the Court of Charcery or of the County PalaCourt of Bankruptcy, or County Court under tine, as if the gross annual income exceeded the Act (sec. 20).

301. (sec. 35). No order of a District or County " Authority is then given to the Board to Court for the appointment or removal of trussanction building, mining, or other leases ; and

tees, or approval of a scheme, is to be valid improvements or alterations not permitted by unless confirmed by the Board (sec. 36); and the trust; and the application or the charity the Board, if dissatisfied with the order of the funds, or the raising of money by mortgage for District or County Court, may remit the case those purposes (sec. 21). And the Board for reconsideration, or may transfer the matter may empower trustees to remove any school

to a Judge of the Court of Chancery or of the master or other officer of any charity, and to County Palatine of Lancaster, if within the jucharge the salary of his successor with a retir- risdiction (sec. 37), subject to any orders to be ing pension, etc., but the consent in writing of made by the Lord Chancellor ; the orders of a visitor, if there be one, is necessary (sec. 22). any District or County Courts under this Act And the Board may sanction a compromise on behalf of a charity (sec. 23), and under special jurisdiction (sec. 38).

are to be enforced as orders under its ordinary

The Board may, on circumstances authorise a sale or exchange of application, authorise an appeal from order of charity lands (sec. 24), and may also authorise District or County Court, and may require a the redemption of rent-charges (sec. 25); and bond as a security for costs, and the Attorneythe leases, sales, exchanges, and other trans- General, acting ex officio, may appeal (sec. 39). actions authorised by the Board are to be valid, Appeal may be brought by way of petition to as if directed by express trusts (sec. 26). the Court of Chancery, or to a Judge of the Moreover, trustees of charities are enabled to Court of Chancery, at Chambers ; and in case purchase sites for building, with or without garden, playground, or other appurtenances, calendar months appeal, the order is to be final

a party allowed to appeal do not within three from owners under disability, etc., according to (sec. 40). the provisions of the Lands Clauses' Consolidation Act, 1845 ” (sec. 27).

“The title to property as against any person

claiming adversely to a charity, or the existence In cases of charities the incomes of which or extent of any charge or trust, is not to be exceed 301., the Master of the Rolls and tried under the Act (sec. 41). Vice-Chancellors, upon application to them

“ Notice is to be published of the applicaat Chambers, are to have the same jurisdic- moval of truslees under this Act” (sec. 42).

tions for schemes, or the appointment or retion as the Court of Chancery or Lord Chancellor intrusted with the care and

The trustees of charities not exceeding commitment of lunatics :

301. per annum are yearly to send a state

ment of income and expenditure to the "Such applications, save as otherwise to be clerk of the County Court; above that sum provided for by any rules, not to be subject to appeal where the

gross income does not exceed to the clerk of the peace, and duplicates are 1001. ; and the Master of the Rolls or Vice- to be forwarded to the Commissioners. Chancellors may direct an information, bill, or The second part of the work contains the petition to be filed (sec. 28); and where the Charitable Trusts' Act, 16 & 17 Vict. c.

BY

WHERE JOINT RETAINER.

SPECIAL

258

Law of Attorneys and Solicitors.-Consolidation of the Statute Law. 137, the Orders of Court, a Schedule of CONSOLIDATION OF THE STATUTE Forms, and Practical Regulations.

LAW. The third part comprises schemes for carrying into effect various charitable trusts : A PARLIAMENTARY paper has just been -schools, hospitals, dispensaries, alms- printed relating to the Criminal Law Bills houses, &c., and to which are appended of the last Session of Parliament, compristhe Grammar School Act, the Lands' ing the remarks of Mr. Greaves, Q.C., and Clauses' Act, &c.

Mr. Lonsdale, the Secretary to the late The Law relating to Charities is con- Criminal Law Commission, in which they cisely, clearly, and accurately stated by reply to the observations of the Judges. Mr. Tudor, and his volume, with the in- They say :structions and regulations it contains, will be highly useful to practitioners and all Statute Criminal Law, the majority of the

“ With regard to the consolidation of the who are engaged in charitable trusts and Judges either express opinions in its favour, carrying into effect the provisions of the or see no great objection to it, and therefore statute.

we need not offer any arguments in support of it. But we beg to call attention to one case,

as a remarkable illustration of its extreme imLAW OF ATTORNEYS AND SOLI-portance. CITORS.

"In Regina v. The Great Western Railway Company, 3 Q. B. 333, the question was whether an inquisition taken in the borough of

Reading, by a coroner for the borough, upon TAXATION OF BILL ONE TRUSTEE,

the body of a person who had been injured by

an accident to a train in Sonning, in the county PETITION.

of Berks, and had died within the borough of A SOLICITOR was jointly employed by the injuries he bad received, was taken withtwo trustees, and upon one having gone to

out jurisdiction. The case was argued before America, his co-trustee obtained an order time for consideration, delivered an elaborate

the Queen's Bench, and the Court, after taking of course for the taxation of the solicitor's judgment, in which, amongst other matters, bill of costs, submitting to pay what should they considered whether the 2 & 3 Edw. 6, c. appear due, but omitting all mention of the 24, s. 2, gave the coroner jurisdiction, and held other trustee, and representing the solicitor that it did not, as it only applied to the case was employed by himself.

where a felony had been committed, and to

counties, and not to boroughs. Now the 2 & The Master of the Rolls said: “There 3 Edw. 6, c. 24, was wholly repealed by the 7 was a joint employment of a solicitor, and Geo. 4, c. 64, s. 32. It is true that this was the application for taxation is made by one had a man been feloniously

wounded in one

only one point in the case; but it is plain, that only. The Court, in such cases, has always county and died in another, the terms of the 2 considered it proper that a special applica- & 3 Édw. 6, c. 24, would have expressly aption should be made. Subject to what I plied to the case, and a man might have been might hear on the other side, I should convicted of murder or manslaughter on an consider it would be very much of course inquisition supposed to be properly taken to direct a taxation on the application of under a Statute which had been repealed years one, where the other could not, by reason because a case decided upon the provision in of his absence, concur. The Court might the 7 Geo. 4, c. 64, s. 12, substituted for that consider the case in the same light as if in the 2 & 3 Edw. 6, c. 24, was mentioned in there had been a refusal to concur. the judgment of the Court. “ Here the application is made by one, unwritten law as to crimes, we at first thought

“With regard to the consolidation of the without the concurrence of the other, in of stating our own views upon that subject; which case the Court has considered a but, upon looking into the Reports of the Crispecial petition necessary. This is shown minal Law Commissioners, we feel that we by the cases of In re Chilcote, 1 Beav. 421; shall pursue a better course by referring to Lockhart v. Hardy, 4 Bear. 224 ; In re those parts where the Commissioners have Hair, 10 Beav. 187.

discussed the question, as well because they “ In this state of circumstances, I must might

be able to express our own, as because

have expressed their opinions better than we discharge the order, but without costs.” what they have said will be entitled to greater In re Lewin, 16 Beav. 608.

weight than anything we might say. We beg, therefore, to refer to 1 Report, p. 2 to 9, inclusive, and p. 25 to 35, inclusive; 4 Rep. p. 5, et seq. : 7 Rep. p. 1 to 14, inclusive, of the

Consolidation of the Statute Law.

259 original Commissioners; and 2 Rep. p. 5 of «« When the law is to be extracted, as the the Revising Commissioners.

unwritten or oral law must be, from a mass of

precedents, it cannot possess the efficacy of The learned gentlemen next consider it written and certain rules and specific penalties necessary to reply to some of the objections in deterring men from the commission of made by the Judges to the consolidation of the

crimes. For the law cannot be said to be unwritten law relating to crimes.

promulgated till after the offence committed,

where, previously, it cannot be known even to “Before doing so, however, it seems to us the most experienced lawyers, except by laboto be by no means immaterial to call attention rious research, and the aid of legal reasoning to the precise extent to which the Common and analogy, We conceive that it will appear, Law would be repealed by these bills and sta- from the digest and notes which we have given tutory rules substituted for the same. By sect. upon the subject of theft, that with regard to 1 of Bill No. 1, no person is to be liable to in that offence at least, this inconvenience is, at dictment or criminal information in the name present, very often practically felt.' of the Queen, 'in respect of any offence

« « And as the Common Law can, in many against the person not included in this Act, cases, only be known by the difficult and falor some Act not hereby repealed, or some Act lible process of extracting principles from preto be passed after the passing of this Act.' It cedents, and determining on the comparative is manifest that this section does no more than weight of authorities where they conflict, so it incidentally repeal the Common Law defini. will be collected from our preceding remarks, tions of the particular offences referred to, and that the materials to which this process must in no way whatever extends beyond that limit. be applied are but imperfectly known to the Now the only other section which repeals any Profession, and are in a great measure inacCommon Law rule is sect. 3, which repeals cessible to the public.' all rules of law contrary to the provisions of “And again the Commissioners observe, this Act relating to incapacity to commit of- 'All the dificulties which we have pointed out fences, duress, criminal intention, and crimi-as presenting themselves to the reduction of nal agency and participation.' Consequently, the Common Law to a more plain and certain all rules of the Common Law, other than such form, afford arguments in favour of that reducas are thus intended to be repealed, would still tion. The same difficulties which occur in continue in force, and be applicable to the of- framing consistent rules from the mass of fences contained in these Bills, in like manner authorities, are experienced in the practical as they are now applicable to Common Law administration of the law; and frequently, on offences.

occasions where there is little time for reflec" The first objection to which we shall reply, for revising it if erroneous, and no sufficient

tion in coming to a decision, few opportunities is, to use the words of Mr. Baron Parke, the means of redressing the consequences of error.' danger of confining provisions against crimes “The inconveniences arising from the adto statutory enactments, and repealing in this ministration of the oral law have, in particular respect the rules of the Common Law, which make recourse to legislative aid absolutely ne

instances, prevailed to such an extent as to are clear and well understood, and have the in- cessary: and thus considerable portions of the calculable advantage of being capable of appli- Common Law have from time to time been decation to new combinations of circumstances clared, and the doubts, occasioned by conflictperpetually occurring, which are decided, when ing cases, have been removed by the Statute

Law, through the means of what are termed they arise, by inference and analogy to them, declaratory Acts. Whatever advantages have and upon the principles upon which they rest.' resulted where such interference has become

"This objection appears to be the principal necessary, will, it is apprehended, be experione relied upon by the Judges: and it is not a in numerous instances where it has not hither

enced from the application of a similar remedy little remarkable, that the very ground on which it is founded is put forward by the Com- to been applied.”—(1 Rep. 26, 27.) missioners as a very strong reason for the con- “Nor does the matter end here. If every solidation of the Common Law offences.

Common Law offence were known and fixed “ They say (1 Rep. p. 25), . However convenient the common or unwritten law may, in by certain rules, the objection of the Judges the opinion of some persons, be in its quality would be entitled to much greater weight; but of flexibility and easy adaptation to all the va- when it is considered that there is hardly a rying exigencies of justice, so far as concerns single Common Law offence, the limits of mere civil rights, yet with respect to the criminal branch of the law these very qualities con

which are known and fixed, either by definia stitute an objection to the system.” So long as tion or decision,' there is the danger that by a large proportion of penal law is merely oral,

“! Take as an example, theft, of which there and dependent on the examination and con. struction of precedents, it must be, to the mass

are at least five or six different definitions, and of society, inaccessible and unintelligible in its observed in Reg. v. Holloway, 1 D. C. C. 375."

none of them complete, as Mr. Baron Parke rules and boundaries.'

260

Consolidation of the Statute Law. applying the maxims and rules of the Common “Mr. Justice Talfourd says, New forms of Law to new states of circumstances as they misdemeanor have repeatedly arisen, and have arise, though, 'done with the most pure and

been punished by the application of the general laudable intention, and with an earnest desire ing memory forms of wrong, either singly

principles of the Common Law. Within liv. to punish the guilty, and to protect the in- adopted or devised in conspiracy, have been terests of society,' the Common Law offences found criminally to impugne the rules of the may be enlarged by construction so as to in- unwritten law, and by the application of the clude cases to which their definitions did not principles of that law have been subjected to

punishment; because those rules, not professoriginally apply. Upon this subject the Coin- ing to define every mode of delinquency, are missioners say in their Fourth Report, p. capable of just adaptation to the changing xiv.:

aspects of society,—to the new temptations

which arise from new circumstances,-to the “Much uncertainty has arisen in the admi. new modes of injury which new duties and new nistration of our Criminal Law from the use of descriptions of property suggest, or to the new constructive extensions of Common Law defi- devices of evil which ancient wickedness may fitions. Most of the definitions of the offences shape.' in the English Law are of great antiquity; and, “And Mr. Justice Crompton says, 'I think having been adapted to times when it was it unadvisable to lose the advantages of the more necessary to guard against force than power of applying the principles of the Comfraud, have been found insuficient to meet the mon Law to new offences and combinations of exigencies of a more civilised state of society, circumstances, arising from time to time, which in which the means and opportunities, as well it is hardly possible that any codification, howas the temptations, to commit fraudulent ever able and complete, should effectually crimes, have increased with increasing civilisa- anticipate.' tion. Finding the existing law, according to its obvious meaning, inadequate to the growing “Two questions occur to us upon these ob

demands of criminal justice, the Courts have servations. Is it their meaning that the defifrom time to time, by their own authority, ex- nition of Common Law offences are clear and tended the boundaries of legal definitions by forced constructions, and have thus brought certain, and that the principles of the Common within the scope of penal provisions predica- Law are only to be applied to new states of facts, ments to which they had never before been in order to ascertain whether they amount to applied, and which had even been excluded in offences within the clear and certain definitions a former age by express decisions. Hence arose the doctrines of constructive treasons, of

of the Common Law offences? Or is it their constructive possession in larceny, of construc- meaning that from time to time the essential tive breaking and entering in burglary, of con- ingredients of Common Law offences are to be structive force, and constructive fear in robbery, reconsidered and determined according to the and many other subtleties and refinements of a similar nature. The extension of the penal law principles of the Common Law? so as to comprehend those predicaments was “If the latter be their meaning, we would reasonable and politic, but the mode of effect- very humbly ask whether this be not rather an ing it was liable to much objection. The prac- encroachment on the functions of the Legistice amounted in effect to an exercise of the lature. In the former, we would suggest that legislative functions by the Judges; and every there is hardly a Common Law offence the limits such new decision beyond the strict limit of of which are clearly ascertained ; and certainly

. the ancient law was not anly objectionable in none so absolutely fixed as not to admit of subjecting the offender to a degree of punish- being questioned whenever a novel case may ment adapted to forcible outrages, where he arise, had neither used nor contemplated violence, “We would further add, that it is possible but also because every such instance of ju- to conceive the occurrence of a case of such a dicial interpretation constituted an ex post nature as so to exasperate the feelings of the facto law. Independently of these objections, public that the Court may be placed in a very such extensions operated injuriously upon the critical position if called upon to decide iaw itself, by rendering it indistinct and un- whether the facts amounted to an offence : in certain, the ancient boundaries being over-proof of this we need only mention the case of thrown for the purpose of reaching flagrant Reg. v. S. and L. Abrook tried at Hertford offences not comprehended by them, without before Mr. Baron Alderson, and reported in substituting such exact limits to the extended The Times of the 3rd June, 1854, where crimes as a correction by legislative interfer- the prisoners were indicted for manslaughter, ence would have prescribed.'

by starving their servant to death, and Mr. These remarks, it is urged, will deserve did not quite concur in the decision that had

Baron Alderson is reported to have said, "He the consideration of the Legislature, espe- been come to in a similar case in London ; but cially in reference to the following opinions there had been a great deal of sympathy created of the Judges :

for the complaining party, and the consequence

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