254 New Statutes effecting Alterations in the Law.-Abolition of Cinque Ports' Jurisdiction. tect remunerated than a Solicitor who investigates the title to, and prepares a conveyance of large property, or tries an action of great importance? COMMONS INCLOSURE (NO. 2.) 17 & 18 VICT. c. 48. An Act to authorise the Inclosure of certain Lands in pursuance of a Special Report of the Inclosure Commissioners for England and Wales. [24th July, 1854.] Whereas the Inclosure Commissioners for England and Wales have, in pursuance of We are aware, however, that there may be suits or actions, or other professional business, in which the per centage rule cannot apply, because the question to be decided is not a pecuniary one, or only par-"The Acts for the Inclosure, Exchange, and tially so. In such cases there should either be a special agreement, or the remuneration be regulated by the usual scale of a solicitor's charges; and to meet the objection that the client may not be able to ascertain the value of the services to be rendered, or may be unduly influenced by the solicitor, where such agreements are entered into, they may be subjected to the revision of a Taxing Master. With the principal part of these sugges tions, we have been favoured by a solicitor of much experience, and we trust they will be followed by other communications. NEW STATUTES EFFECTING ALTE- 17TH VICTORIA, 1854. THE Acts of the present Session printed in the present Volume, with an Analysis to each, will be found at the following pages :— Income Tax, cc. 17, 24, pp. 46, 134, ante. EVIDENCE IN ECCLESIASTICAL COURTS. 17 & 18 VICT. c. 47. An Act to alter and improve the Mode of taking Evidence in the Ecclesiastical Courts of England and Wales. [24th July, 1854] Improvement of Land," issued their provi sional orders for and concerning the proposed inclosures mentioned in the Schedule to this Act, and the requisite consents thereto have sioners have by a special report certified their been given: And whereas the said Commisopinion that such proposed inclosures would be expedient; but the same cannot be proceeded with without the previous authority of Parliament: Be it enacted 1. That the said several proposed inclosures mentioned in the Schedule to this Act be proceeded with. 2. In citing this Act in other Acts of Parlia ment, and in legal instruments, it shall be sufAnnual Inclosure Act, 1854," or "The Acts ficient to use either the expression "The Second for the Inclosure, Exchange, and Improvement of Land." Be it enacted, That in any suit or proceed- Cove ing depending in any Ecclesiastical Court in England or Wales, the Court (if it shall think fit) may summon before it and examine or cause to be examined witnesses by word of mouth, and either before or after examination by deposition or affidavit; and notes of such evidence shall be taken down in writing by the Judge or registrar, or by such other person or persons, and in such manner, as the Judge of he Court shall direct. THIS Bill, which has been brought in by the Government, proposes to abolish the jurisdiction of the Lord Warden of the Cinque Ports, and the Constable of Dover Castle, in all civil suits and proceedings, both at law and in equity; and to provide Abolition of the Cinque Ports' Jurisdiction.—Chancery Amendment Bill.—Review. that after the 30th September next, all process and judgments shall be executed as in other parts of the respective counties of such Cinque Ports. The parishes of Margate and other places, hitherto in the liberties of Dover, are to be severed therefrom, and form part of the county of Kent; and the towns of Winchelsea and Rye, are to form parts of their several counties. The prisoners in the gaol of Dover Castle are to be removed to the county gaol on the 30th September, without writ of habeas corpus. 255 It is also proposed that the powers given by the 15 & 16 Vict. c. 86, s. 63, of making general rules and orders shall extend to and include the summoning of jurors and witnesses, and the trial of issues of fact. The commencement of the Act will be from and after the 1st day of November next. NOTICES OF NEW BOOKS. The Charitable Trusts' Act, 1853. The Orders, Regulations, and Instructions issued pursuant thereto; and a Selection of Schemes, with Notes, preceded by a Summary of the Law of Charities. By OWEN DAVIES TUDOR, Esq., of the Middle Temple, Barrister-at-Law. London William Henry Bond; Wildy & Sons; and William Amer. 1854. Pp. 302. : Thus, it appears, that the Government intend to put an end to the anomalous and peculiar jurisdiction of these old local Courts, which are obviously inconvenient in the general administration of justice, and to transfer the business to the ordinary Courts of the country. In like manner the Borough Court at Birmingham was lately abolished. In this work Mr. Tudor has arranged These measures clearly indicate the general the subjects treated of in the following design of simplifying and rendering our order :-1st. What constitutes a charitable system of judicature uniform. trust, and what under the 43 Eliz. c. 4, or Whether the County Palatine of Lan- otherwise, may be its objects. 2nd. What caster will form a permanent exception to constitute superstitious as contra-distinthe general rule, we know not. The Stan-guished from charitable uses. 3rd. What nary Court of Cornwall may also, perhaps, regulations the policy of the law prescribes be intended as another exception. These for the validity of gifts to charitable uses by peculiar tribunals having distinct Judges the 9 Geo. 2, c. 36. 4th. The jurisdiction and officers, and rules of practice, of course occasion additional expense, as well as interfere with the equal and uniform administration of the law. CHANCERY AMENDMENT BILL. ASSESSMENT OF DAMAGES. SINCE We laid before our readers the first edition of this Bill (see ante, p. 198), by which it is proposed to empower the Court of Chancery to award damages in cases of breaches of covenant, &c., the following important provision has been added -enabling the Court to empannel juries and to compel the attendance of witnesses : over charitable trusts. 5th. The mode of procedure in cases of charitable trusts, both according to the old practice and under the Charitable Trusts' Act, 1853. 6th. The construction of gifts to charities, and the administration of their funds. 7th. The powers and duties of trustees of charities, and the extent of remedies in cases of breach of trust. 8th. The appointment and removal of trustees, schoolmasters, and others connected with charities. 9th. Fiscal regulations as to property given to charities. In the Introduction to the Volume, Mr. Tudor remarks that charitable trusts present many anomalies when compared with other trusts : "None at first are more striking than the "For the better assessing such damages, peculiar favour shown by the Court of Chanand for determining any question of fact cery in holding gifts to charitable purposes to that may arise in any cause or matter, it be good, which had they been given upon orshall be lawful for the said Court (if it dinary trusts would have been void, either on shall so think fit) to empannel juries and account of the uncertainty or failure of the persons or objects for whom they were destined. compel the attendance of witnesses, and for Again, on the other hand, the mode in which such purposes to exercise all the powers for the Legislature has interfered by 9 Geo. 2, c. compelling the attendance of jurors and 36 (commonly called the Statute of Mortmain), witnesses which are now vested in any of to prevent gifts to charities of anything savourher Majesty's Courts of Record at West- ing of realty except in the manner there prescribed; and the strict construction that Act minster." 256 Review: Tudor on the Charitable Trusts' Act, 1853. has received in our Courts of Justice, present a striking contrast to the favour which charities receive when the subject-matter of the gift consists of pure personalty. Gladstone, 1 Ph. 290), and of Roman Catholic priests (Attorney-General v. Gladstone, 13 Sim, 7; 1 Ph. 290), is valid. And it has been held. that a bequest enabling people of the Jewish religion to observe its rites is good (Straus v. Goldsmid, 8 Sim. 614)." It may be useful to place before our "It must however be remembered that the Law of Charitable Trusts, independent of that Statute, was principally moulded into shape by ecclesiastical tribunals, and that the Statute 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, "It has conferred on the Commissioners by many large and improvident alienations or 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.' Of a superstitious as distinguished from a charitable use, Mr. Tudor observes that the former has been defined generally to be will, it is to be hoped, be most beneficially exercised in carrying out the intentions of the founders of charities in the mode most useful to the country at large. It has also provided a more economical forum when the funds of 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 1 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 stateman Catholic monasteries or other establish-ments in writing in relation to any charity, and ments at home or abroad (De Gracian 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; Attor- 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 Keen, 803; and see De Themmines v. De Bonneval, 5 Russ. 288), has been held void. However, by the Statute 3 & 4 Wm. 4, c. 115, which is retrospective (Bradshaw v. Tasker, 2 M. & K. 221), except as to suits previously commenced (Attorney-General v. Todd, 1 Keen, 803), persons professing the Roman Catholic religion are put upon the same footing with respect to their schools, places for religious worship, education, and charitable purposes, as Protestant Dissenters, subject however to the provisions of the Mortmain Act (9 Geo. 2, c. 36). This Statute, coming after the 10 Geo. 4, c. 7, which relieved the personal disabilities of Roman Catholics, has very materially altered the law upon this subject. Accordingly, it has been decided, that a legacy to be applied to the use of a Roman Catholic College (Walsh v. upon oath, and all persons voluntarily attending before him (sec. 12), persons giving false evidence, are to be guilty of a misdemeanour (sec. 13); and any person who shall refuse or wilfully neglect to render to the Board any account or statement, or to answer questions and inquiries, or to attend any lawful precept of any inspector, or to give evidence before him, or shall wilfully alter, destroy, withhold, or refuse to produce any deed, etc:, or document, is to be taken to have been guilty of a contempt of the High Court of Chancery (sec. 14). Neither the Board nor their inspectors are to have any power over persons holding or claiming to hold any property whatsoever adversely to the charity, or free or discharged from any charitable trust or charge (sec. 15). "The Board is to receive and consider all applications for their opinion or advice respect Review: Tudor on the Charitable Trusts' Act, 1853. ing any charity; and persons acting thereon will be indemnified against the retrospective effect of any judicial order, unless he has been guilty of fraud in obtaining such opinion or advice (sec. 16). "Notice in writing of any proposed proceedings relative to charity, is to be transmitted to the Board, who may by certificate authorise the same, or such as they may think proper; and Courts are not to entertain proceedings as to charities, except upon and in conformity with the certificate (sec. 17). But the powers of the Attorney-General acting ex officio are not to be affected (sec. 18). 257 gross annual income of charity in the County Palatine of Lancaster exceed 307., the Chancellor and Vice-Chancellor thereof to have the jurisdiction given to the Master of the Rolls and Vice-Chancellors sitting in Chambers (sec. 29). The provisions as to charities exceeding 301. per annum to extend to charities in the city of London not exceeding 30%. (sec. 30); the Lord Chancellor, with the advice of the Master of the Rolls and Vice-Chancellors, or two of them, to make general orders regulating applications at Chambers” (sec. 31). District Courts of Bankruptcy and County Courts are to have jurisdiction in cases of charities, the incomes of which do not exceed 30l. (sec. 32). "Upon the report of an inspector, the Board may authorise proceedings where no notice had been given to them; and the Board may, before giving any opinion, or making an order or certificate after notice, cause local in-sitting for a County Court Judge (sec. 33); "But it is not to be exercised by a deputy quiries to be made by an inspector, and deposit his report for local inspection, and consider any objections thereto (sec. 19). "The Board may certify cases to the Attorney-General, who may thereupon, if he think fit, institute legal proceedings in Chancery, or before a Judge at Chambers, or a District Court of Bankruptcy, or County Court under the Act (sec. 20). "Authority is then given to the Board to sanction building, mining, or other leases; and improvements or alterations not permitted by the trust; and the application of the charity funds, or the raising of money by mortgage for those purposes (sec. 21). And the Board may empower trustees to remove any schoolmaster or other officer of any charity, and to charge the salary of his successor with a retiring pension, etc., but the consent in writing of a visitor, if there be one, is necessary (sec. 22). And the Board may sanction a compromise on behalf of a charity (sec. 23), and under special circumstances authorise a sale or exchange of charity lands (sec. 24), and may also authorise the redemption of rent-charges (sec. 25); and the leases, sales, exchanges, and other transactions authorised by the Board are to be valid, as if directed by express trusts (sec. 26). Moreover, trustees of charities are enabled to purchase sites for building, with or without garden, playground, or other appurtenances, from owners under disability, etc., according to the provisions of the Lands Clauses' Consolidation Act, 1845" (sec. 27). and where two or more Courts have concurrent jurisdiction, the Board is to direct to which and the Board may direct applications as to Court applications are to be made (sec. 34); a charity within the jurisdiction of a District or the Court of Chancery or of the County PalaCounty Court, to be taken before a Judge of tine, as if the gross annual income exceeded Court for the appointment or removal of trus301. (sec. 35). No order of a District or County tees, or approval of a scheme, is to be valid unless confirmed by the Board (sec. 36); and the Board, if dissatisfied with the order of the District or County Court, may remit the case for reconsideration, or may transfer the matter County Palatine of Lancaster, if within the juto a Judge of the Court of Chancery or of the risdiction (sec. 37), subject to any orders to be made by the Lord Chancellor; the orders of any District or County Courts under this Act jurisdiction (sec. 38). The Board may, on are to be enforced as orders under its ordinary application, authorise an appeal from order of District or County Court, and may require a bond as a security for costs, and the AttorneyGeneral, acting ex officio, may appeal (sec. 39). Appeal may be brought by way of petition to the Court of Chancery, or to a Judge of the Court of Chancery, at Chambers; and in case calendar months appeal, the order is to be final a party allowed to appeal do not within three (sec. 40). "The title to property as against any person claiming adversely to a charity, or the existence or extent of any charge or trust, is not to be tried under the Act (sec. 41). In cases of charities the incomes of which exceed 301., the Master of the Rolls and Vice-Chancellors, upon application to them "Notice is to be published of the applicaat Chambers, are to have the same jurisdic-moval of trustees 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 commitment of lunatics : "Such applications, save as otherwise to be provided for by any rules, not to be subject to appeal where the gross income does not exceed 100%; and the Master of the Rolls or ViceChancellors may direct an information, bill, or petition to be filed (sec. 28); and where the The trustees of charities not exceeding 301. per annum are yearly to send a stateclerk of the County Court; above that sum ment of income and expenditure to the to the clerk of the peace, and duplicates are to be forwarded to the Commissioners. The second part of the work contains the Charitable Trusts' Act, 16 & 17 Vict. c. 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. The third part comprises schemes for carrying into effect various charitable trusts: -schools, hospitals, dispensaries, almshouses, &c., and to which are appended the Grammar School Act, the Lands' Clauses' Act, &c. The Law relating to Charities is concisely, clearly, and accurately stated by Mr. Tudor, and his volume, with the instructions and regulations it contains, will be highly useful to practitioners and all who are engaged in charitable trusts and carrying into effect the provisions of the statute. LAW. A PARLIAMENTARY paper has just been printed relating to the Criminal Law Bills of the last Session of Parliament, comprising the remarks of Mr. Greaves, Q. C., and Mr. Lonsdale, the Secretary to the late Criminal Law Commission, in which they reply to the observations of the Judges. They say: Statute Criminal Law, the majority of the "With regard to the consolidation of the Judges either express opinions in its favour, or see no great objection to it, and therefore 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 im LAW OF ATTORNEYS AND SOLI-portance. "In Regina v. The Great Western Railway Company, 3 Q. B. 333, the question was whe ther an inquisition taken in the borough of Reading, by a coroner for the borough, upon TAXATION OF BILL BY ONE TRUSTEE, the body of a person who had been injured by WHERE JOINT RETAINER. PETITION. SPECIAL A SOLICITOR was jointly employed by two trustees, and upon one having gone to America, his co-trustee obtained an order of course for the taxation of the solicitor's bill of costs, submitting to pay what should appear due, but omitting all mention of the other trustee, and representing the solicitor was employed by himself. an accident to a train in Sonning, in the county of Berks, and had died within the borough of the injuries he had received, was taken without jurisdiction. The case was argued before time for consideration, delivered an elaborate the Queen's Bench, and the Court, after taking judgment, in which, amongst other matters, they considered whether the 2 & 3 Edw. 6, c. 24, s. 2, gave the coroner jurisdiction, and held that it did not, as it only applied to the case 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 Edw. 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 before. This case is the more remarkable, 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. "Here the application is made by one, without the concurrence of the other, in which case the Court has considered a special petition necessary. This is shown by the cases of In re Chilcote, 1 Beav. 421; Lockhart v. Hardy, 4 Beav. 224; In re Hair, 10 Beav. 187. "In this state of circumstances, I must discharge the order, but without costs." In re Lewin, 16 Beav. 608. the judgment of the Court. unwritten law as to crimes, we at first thought "With regard to the consolidation of the of stating our own views upon that subject; but, upon looking into the Reports of the Criminal Law Commissioners, we feel that we shall pursue a better course by referring to those parts where the Commissioners have discussed the question, as well because they might be able to express our own, as because have expressed their opinions better than we what they have said will be entitled to greater 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 |