Second Report of the Charity Commissioners for England and Wales. 393 many such cases are in progress at different couraging their transfer to the official trustees, stages of their advancement through our office, and notwithstanding, that those trustees are and many have been conducted by the appli- unauthorised to receive money for investment cants themselves ultimately through the County by themselves under any circumstances, or to Courts. receive transfers of stock or securities without the order of a Court, we have authorised applications for such orders comprising about 13,000l. stock, principally in small sums, and transfers of about 11,000%. of that amount have already been completed. The number of cases in which we have granted certificates authorising applications to the Judges of the Court of Chancery or the County Courts, after the prescribed public notices, are found to be very nearly equal, being respectively 71 and 72. Our authority to resort for any purposes to the district Courts of Bankruptcy has not been applied for. We have no doubt that advantage would be taken of this beneficial provision to a very large extent, if the facilities for that purpose The appointment of efficient and responsible were increased; and we venture to suggest, trustees, particularly for the smaller charities, that transfers and payments of charitable funds and the establishment of suitable schemes for to the official trustees might be safely authotheir application and management, are very rised by the order of our Board. We are senextensively required, and most frequently con- sible of the necessity of placing such funds stitute the necessary and sufficient means of under the guard of additional and stringent rectifying past abuses and precluding their re-regulations, but these and other provisions are currence, and in this view the comparatively required with respect to the duties already enlimited number of the applications, which have trusted to the official trustees. been made to us with these objects, and have been proceeded with, is unsatisfactory. We have experienced a great indisposition on the part of many applicants, particularly on behalf of the smaller charities, to pursue the relief (which they have expected to receive directly from our Board) through any ulterior proceedings in the Courts; and for this reason the comparative numbers of the cases, referred by us to the Judges of the Superior or the Local Courts, afford no real test of the proportion of the larger and smaller charities in which such relief is required. We need not state our entire deference to the wisdom of the Legislature in dealing with these subjects, but we may be permitted to express our conviction in the result of our experience, that our usefulness would be greatly increased, and the public expectation of advantage from our Commission would be much more largely realised, if the direct remedial powers of our Board (now circumscribed within very contracted limits) were judiciously, but considerably extended, within whatever restrictions as to the value of the endowments to be dealt with, and subject to whatever appeal may be considered expedient. The directions of the Act for the management of funds in the hands of the official trustees have been carried into effect with entire regularity and ease, the dividends on the funds held by them being duly apportioned immediately on their receipt and remitted to the acting trustees of each charity. Amongst the various applications which have been made to us, many have had for their objects the removal of persons alleged to have been unduly placed in charitable institutions, and the establishment of proper objects therein, the restitution of officers of charities to employments of which they had been deprived, but especially, and in numerous cases, for the apportionment of parochial and other local charities after divisions of the parishes or other districts entitled to their benefit. We have had no juristiction to deal directly with the matter of these applications, but we think it our duty to refer to them for the purpose of inviting consideration of the expediency of constituting some authority, under which such apportionments and other objects may be more summarily and conveniently effected than under the existing law, such an authority appears to us to be much needed, particularly in the case of the apportionments. There are no limitations of the Act of which we have had more frequent occasion to desire The inspectors appointed by your Majesty's a relaxation than those which restrict or im- Commission have been actively engaged in the pede transfers to the official trustees of cha- performance of their duties. Under our direcritable funds. The institution of such trustees tion, they have investigated the circumstances in whom the endowments, particularly of the of about 800 charities, and have been enabled lesser charities, may not only be permanently to report to us the result of a large proportion secured from misappropriation or loss, but ex- of these inquiries. Their examinations have empted also from the cost of transfers and comprised many separate institutions in difmanagement, is a most beneficial provision. ferent parts of the kingdom, and in some inThe loss and waste of charity funds, left unse-stances the whole charities of particular towns cured in private hands, or invested on failing or localities. The former class has included or insufficient securities, or separated in their particularly the important foundations of Sherlegal devolution from the devolution of the trusts burn Hospital, near the city of Durham, and to which they belong, are of too frequent ex- the College at Dulwich, in the county of Surperience, as is also the onerous expense often rey; and we trust that we may be allowed to incurred in procuring their transfer. We have submit to your Majesty in a supplemental reendeavoured to protect many charitable funds port schemes which have been prepared, or from these risks and evils by procuring or en-l'are now in preparation, for the more bene 394 Second Report of the Charity Commissioners for England and Wales. ficial administration of these and some other to pursue any of these proceedings beyond the institutions. first or preliminary stages. The second class of cases includes particularly the numerous charities of the town of Warwick and the city of Coventry, and the charities of several districts of the city of London. We have selected these cases for connected examination, in the expectation that we shall be enabled to approve comprehensive schemes for the more beneficial employment of their large aggregate revenues, and we shall anxiously apply ourselves to the accomplishment of this purpose at as early a period as the magnitude and complication of the questions to be dealt with, the necessary communications with the parties interested, and the pressure of our other duties, will permit. In our former report to your Majesty we referred to the expected returns of the accounts of all charitable institutions, expressing the importance attached by us to those returns for our practical guidance. We did not unduly estimate their value for this purpose, and the accounts already received, and of which the examination is in active prosecution in our office, are found to afford the best indications, generally attainable by us, of the condition and management of the charities to which they relate. It need not be observed that this examination must be a work of protracted labour, but it is diligently pursued. It is, however, our, duty to report, that the compliance with the law which requires these returns has hitherto been very incomplete. The charities, of which we had received the proper accounts at the close of last year, scarcely exceeded 8,000 in number, and although daily additions are made to them, the number of returns received for the year 1853 up to the present time is less than 10,000. We do not doubt that a general obedience to a very beneficial regulation, will be the future result of more sufficient and correct consideration than may have yet prevailed upon this subject with many trustees; but in the meantime we have considered it our duty to obtain to the fullest extent of our power a compliance with the requisitions of the Act. The Charitable Trusts Act has attached no specific penalty to the omission of the returns, and we have reason to believe that a very erroneous impression to the effect that the law might be disregarded with impunity, had extensively prevailed. We consider it incumbent on us to distinguish and record the exertion of the Society of Friends to give effect to the law as affecting foundations for their benefit. The duty of procuring complete returns of all their charities in the kingdom was undertaken shortly after the commencement of our duties by certain highly respectable members of their body, and has been performed in a very systematic and complete manner. With reference both to the accounts and to our general duties, we are constantly sensible, that more local aid than is available to us in our functions would conduce greatly to their effective and safe discharge. Our means of ascertaining the trustees of different charities are very imperfect, and we are compelled to rely to an inconvenient and unsatisfactory extent on epistolary correspondence only for our information, and for the means of exercising some of our material authorities. The valuable reports of the former Commissioners for inquiry into charities furnish at present the principal source of our information respecting the general foundations under our jurisdiction. But as many of those founda tions were exempted from that inquiry, or were not brought to the knowledge of the Commis sioners, and many others have been established subsequently, these reports are necessarily imperfect as a register of the existing charities, and owing to the lapse of time they rarely afford sufficient information from which the existing trustees of the charities included in them can be ascertained, nor have we any sufficient means of supplying these deficiencies. We are bound to acknowledge the exertions used by many gentlemen of station and influ ence, and by many of the clergy and others, to bring the circumstances of particular charities to our knowledge, and to advance the objects With this subject, we have taken such means of the Act; but this assistance has been very as appeared to us best calculated for making partial, and must be insufficient at all times the law most generally known; we have also for the duties required from us. distributed forms of account in large numbers It is our impression that the services of local for the assistance of trustees, and special re-inspectors, or agents to be employed for obquisitions having been addressed from our office to the trustees of not less than 1,500 charities, we ultimately thought it fit that proceedings of a compulsory and penal character should, in some cases, be adopted. About 60 cases have been selected for such proceedings; of charities principally under the management of trustees occupying some public position as municipal and parochial trustees, rather than those in private stations. We have regretted We are authorities to demand accounts and the necessity for these measures, and we may written statements from the trustees only, or hope that little necessity for them will hereafter administrators of charities, and any person asexist; but we have the present satisfaction of serting an adverse claim of title to property reporting that it has not hitherto been requisite which may be the subject of inquiryis ex taining our necessary information, and for instituting special inquiries, and performing many other acts under the delegated authority of our board, and particularly for requiring and auditing (where necessary) the accounts of charities, would be productive of great benefit. We think it also of much importance that the powers of inquiry exercisable by the Commissioners themselves should be enlarged. Second Report of the Charity Commisssoners.-Legal Statistics.-Law of Costs. 395 empted from all question. We have no au- form, the remaining 90 only being followed by thority to require information from third litigation. parties, or the attendance of any person for the There have been 228 final judgments propurpose of examination, and our power to re-nounced in litigated causes without the interquire the transmission or production of deeds vention of a jury, and 12 tried by jury. The and documents (which is most material to the number of causes ready for judgment on hearpurpose of our Commission) is limited, if not ing counsel or otherwise is 97, of which three questionable. are to be tried by jury. The inspectors are authorised to take evidence on oath, and have some other powers of inquiry exceeding, but not largely, those of the Commissioners. These restrictions are found materially to impede the beneficial operation of the Act, and we think that they may be advantageously relaxed if the Legislature, in its wisdom, should think fit. In the 2nd division, the number of reclaiming notes against judgments of the Lords Ordinary was 106, and there were 349 incidental and summary applications, of which 287 were passed as matter of form. The number of final judgments without the intervention of a jury was 99, and tried by jury 7. The number of causes ready for judgment on hearing counsel or otherwise is 40, of which 5 are to be tried by jury. LAW OF COSTS. ON PETITIONS UNDER LANDS' CLAUSES' An exemption from the Act has been claimed and insisted on by certain collegiate bodies, which we do not consider to have been contemplated by the Legislature. The exemption, if sustainable, would, we think, comprise a large class of important charities, and it has appeared to us the more necessary on that account that the question should be authoriTHE Eastern Union Railway Company took tatively determined. With this view we have directed proceedings proper for that purpose certain land, which was devised by a testator to be instituted against a distinguished insti- to his wife for life, with remainder to his heirs, tution, for bringing the matter in a compendi- and the purchase-money was paid into the ous form before the legal tribunals. Bank and invested in Consols,-the dividends Before closing our report we beg, with your Majesty's permission, to express our sense of the being paid to the widow under an order of loss sustained by the public service, and es- the Court. Upon the death of the widow in pecially by this Commission, in the recent February, 1853, two persons claiming to be death of the Reverend Richard Jones. We the co-heirs, presented two several petitions are deprived of very valuable co-operation in our duty, which was always afforded by him with zealous interest in the promotion of its objects, and with great personal kindness towards his colleagues. 28th February, 1855. LEGAL STATISTICS. INCUMBERED ESTATES' COURT, IRELAND. THE number of appeals from the Incumbered Estates' Court, Ireland, to the Irish Privy Council from the 20th March, 1854, to the 20th February, 1855, was 25,-of which 13 were affirmed, 9 were reversed, 1 was dismissed by consent, and 2 remain undisposed of.-House of Commons' Return, 6th March, 1855. COURT OF SESSION, SCOTLAND. It appears that in the Outer House, 1488 causes have been for the first time enrolled before the five Lords Ordinary; that there have been 497 decrees in absence; 602 final judgments pronounced in litigated causes; that there are 222 causes ready for debate but not heard, and 27 causes at Avizandum. for the transfer to them of their respective portions of the stock in Court, and a reference was thereupon made to Chambers to ascertain who were the heirs-at-law of the testator, and the real representatives of such as were dead. Advertisements were inserted in the newspapers, and several claimants appeared, and in consequence the investigation proved troublesome. The petitioners succeeded in supporting their claim, and on the question, as to who were liable to pay the costs occasioned by the two petitions, the Vice-Chancellor Wood said, that the company were clearly liable: "Each of the petitioners claimed as coheirs, deriving his title from one of two sisters, who had inherited as heirs in coparcenary. Neither petitioner could know what might be the pedigree of the other. Each had traced his title through the sister from whom he was descended, and need not incumber his title with the pedigree of the co-heir. The two petitions were therefore properly presented. In the Inner House, 1st division, there have been 200 reclaiming notes presented against judgments during the above period; that there have been 748 incidental and summary appliWith respect to the claimants who answered cations, of which 658 have passed as matter of the advertisements, the petitioners had filed Y 5 396 Law of Costs.-Economy of the Law A New Project of Chancery Reform. some affidavits in answer to the claims set up, and those affidavits were no doubt a litis contestatio, and therefore the costs of them came within the exception in the 80th section. The company had a right to require a bill of the conveyancing costs to be delivered in the usual way, under ss. 82 and 83; and therefore the order now made would be only, under the 80th section, for payment of the costs of the petitions, except the costs by the Act otherwise provided for, and the costs occasioned by the adverse claims of other parties.'" In re Spooner's Estate, 1 Kay & Johnson, 220. ance 66 ECONOMY OF THE LAW. Solicitors. They brought promptly before the 66 perfectly in his power: if the Solicitor is evil immense power that he wields. The client is disposed, he can reduce him from affluence to poverty-nay, his life is at his disposition. 66 A NEW PROJECT OF CHANCERY REFORM. A PAMPHLET has just made its appear- and Solicitors are useful members of the state. Thus it will be perceived that Barristers on the Economy of the Law; espe: Each performs his task as well as he can. The cially in relation to the Court of Chancery,' Solicitor is the exponent of the good or evil by George Cochrane, Esq., Barrister-at-passions of his employer, and it is his duty to Law, the substance of which, as a very protect and defend him. The state could not extraordinary production, we shall submit go on without the Solicitor; and it is that to our readers. The Author is a member knowledge which has given the Solicitor the of the Bar, and informs us that his pages are the result of 21 years' experience in the Chancery Courts of England. After advert ing to the origin of society, he speculates Among the Solicitors, I know many upwith considerable plausibility on the com- right men, who do not abuse their power, but mencement and progress of our judicial act most creditably; and I am certain that system, and the necessity of employing those gentlemen, and others whom I do not lawyers to conduct and settle the disputes know, and who act with the same integrity, of the community. He considers the will approve of what I am now writing. Judges, however appointed or authorised, of the English Bar, I have never met with a "From my own experience and observations were originally guided by common sense, more honourable body of men. They do their the basis of the principles of Equity. Next duty by their client, and uphold the interest in order of the social system and of legal of that client with the greatest zeal. They do history comes the Attorney or Solicitor, and not possess that power which the Solicitor subsequently the Barrister, who are thus possesses." introduced to our notice :: Mr. Cochrane then proceeds to notice the old complaint of delays in Chancery suits, which he contends will destroy our commerce, unless prompt measures are taken to remove the evil. He justly lauds Lord Justice Turner, who introduced an excellent Act for the improvement of our equitable jurisdiction; but the other recent Statutes and Orders of Court which have effected such large reforms in the business of the Court of Chancery are very imperfectly stated. In his second chapter, where in the Author treats of that part in Chancery which relates to disputes in commercial transactions, we are told that— "The causes originating the introduction of suits in Chancery are too numerous to mention here. It is simply my business to state the Economy of the Law-A New Project of Chancery Reform. 397 time they ought to be in the Court, and how incapacitates it from attending to anything they should be got speedily out of it. I have been connected with the Court of Chancery for about twenty years-fifteen years as a barrister, and five as a student; and my opinion is: "That suits of which the persons and the property are in the United Kingdom ought to be decided in three months: never to exceed six months. In nine cases out of ten, the above time would be sufficient. "That suits where the persons or the property are in the colonies, ought to be decided in twelve months. The exceptions would be For remedy of the grievances which Mr. Cochrane points out, he proposes that a large number of new Courts of Equity should be constituted. He says:— "I was formerly of opinion that it would be desirable to extend the jurisdiction of the County Court Judges; but I am of opinion, that the amount of business mentioned in the foregoing chapters (and which is requisite to be done) would be so great, that the present County Court Judges could not execute it, and at the same time fulfil their present duties usefully to the lower classes of the community; I therefore respectfully submit that fifty new Courts should be created, viz. ;= 66 Thirty for England and Wales, "Ten for Scotland. "Ten for Ireland. "That in each Court there should be a Judge, a Registrar, three Secretaries, an Usher, and a Porter. "One of the secretaries should attend to the acceleration of causes mentioned in the second chapter. "Another secretary should attend to that property mentioned in the third chapter. "And the third secretary should attend to the property mentioned in the fourth chapter. "The management of these Courts, together with the Superior Courts of Chancery and the Colonial Courts, will require the undivided attention of the Lord Chancellor, who should not continue the office of Judge, but be entirely a statesman. His eye should not only range over the Courts of the United Kingdom, but over those of the colonies. "The reader will probably inquire why the Lord Chancellor should not hear causes? The following is my answer: The time occupied in hearing causes, from 10 in the morning until four in the afternoon, exhausts the mind, and else. The surveillance of the practice of the Courts above-mentioned, and the improvement of the law, require the application of a mind that is vigorous, and that vigour of mind can only be obtained by not allowing it to be fatigued by hearing causes from 10 till four o'clock. "The appeals from the 30 Courts in England and Wales should be to the Lords Justices of Appeal, which, for the expedition of business, might be composed of two Courts; for at present, when the Lord Chancellor sits distinct from the Lords Justices, there are two co-equal Courts of Appeal. These Courts of Appeal might be composed of three members each. From the Lords Justices of Appeal there would be an appeal, as at present, to the House of Lords; and when that occurred, one of the Lords Justices of Appeal should sit there to adjudicate it." This proposition is startling enough, but ways and the modus operandi and the " means" whereby the expenses attendant on these new arrangements are proposed to be effected, surpass our humble powers of practical calculation. Mr. Cochrane thus details, 1st, the expenditure, and 2nd, the mode of providing for it : 1st. "The construction of 50 buildings for the new Courts in the United Kingdom would average about 5,000l. each, excepting those for London, which would require about 6,000l. each, on account of the greater value of the ground and the higher price of labour; and assuming that there are five of the above Courts in London, the calculation would be as follows: For the five Courts in London, at For the forty-five Courts in the £30,000 225,000 255,000 12,750 267,750 |