A Treatise on the Practice of the High Court of Chancery

OF THE PERSONS BY WHOM A SUIT MAY BE INSTITUTED.

SECT. I.-The King's Attorney General.

It is a general rule, subject to very few exceptions, that there is no sort or condition of persons but may sue in the Court of Chancery, and this extends from the highest person in the State to the most distressed pauper.

The King himself has the same right which a subject has, to institute proceedings in his own Courts for the assertion of any right which he claims, either on behalf of himself or others, and the same principles which entitle a subject to the assistance of a court of equity, to enable him to assert his legal rights, are equally applicable to the Sovereign. Thus a suit may be instituted on behalf of the Crown to have the benefit of a discovery from persons charged to be aliens of the place of their birth, in order to assist him in a commission to inquire into their lands, with the view of seizing them into his hands by inquisition. (a) For the same reason, where an office cannot be found for the Crown without the aid of a Court of Equity, the Court will, at the suit of the Crown, interfere to restrain the commission of waste in the mean time. (b)

It is said that the King is not bound to assert his rights in any particular Court, but that he may sue in any of his Courts which he pleases, without reference to the question whether the subject matter of his suit is such as comes within the peculiar jurisdiction of such Court. (c) Thus he may have a quare impedit in the King's Bench, (d) or he may elect to sue either in a Court of Common Law or in a Court of Equity. In a suit which was commenced in Chancery by the Attorney General on behalf of the King and Lord Hunsdon, as the King's farmer for the manor of West Thoresley and Cas

[ #4 ] tleby, in the county of York, against the Duchess Dowager of Arundel and others, a decree was pronounced for the King, although the King had a good title at law, as appears by the report of Sir H. Hobart, who as Lord Chief Baron assisted the Lord Chancellor; (e) and in Attorney General v. Vernon, (f) a patent of lands was set aside as unduly obtained, by information in equity. In both these cases, however, there were equitable grounds alleged for instituting the proceedings. In the former case, the cause alleged was, that the deeds whereby the estate came to the party under whose attainder the Crown claimed, were suppressed or withheld by the defendants; in the latter case, fraud and surprise were charged as grounds of relief. There seems, however, to be no doubt but that the King may proceed in questions relating to the property to which he is entitled in right of his Crown, either in a Court of Law or in a Court of Equity, and that where he has caused a Court of Equity to be informed that an intrusion has been committed on his land, although no matter of equitable jurisdiction has been stated, yet the information will be entertained: but in such cases, if any question of law arises, the Court will put it in the course of trial by a Court of Law, and will retain the information

(a) Attorney General v. Du Plessis, 1 Bro. P. C. 415-19.

(b) 2 Ves. 286.

(e) The King v. The Countess Dowager of Arundel, Hob. 131. (ƒ) 1 Vern. 277, 370; 2 Ch. R. 353, S. C.

till the result of such trial is known. (g) In general, however, suits on behalf of the Crown are instituted in the Court which, by its constitution, is most properly adapted to the case; and the Court of Exchequer being the general Court for all business relating to the King's revenue or property, the practice is, that all proceedings relating to the property of the Crown, whether at common law or in equity, should be instituted there. Many cases, however, occur in the books in which proceedings relating to the rights of the Crown have been commenced in the Court of Chancery; but they are, in general, confined to cases of purpresture or nuisance, or other matters where the proceedings have been commenced at the relation of individuals, who, as they are considered responsible for the costs and conduct of the suit, are in general at liberty to commence it in whatever Court of competent [ jurisdiction they please. For the same reason, informations on behalf of charities, or of idiots or lunatics, in which there is generally a relator, are frequently exhibited in the Court of Chancery, although they may, with equal propriety, be commenced in the Exchequer. And it is to be observed, that in cases relating to charities, informations under the Act of 59 Geo. 3, c. 51, may be commenced either in the Court of Chancery or Exchequer, although in general they have been instituted in the former Court.

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In all cases where the right of the King, or of those who partake of his prerogative, are the subject of the suit, the name of the King is not, as we have seen, made use of as the party complaining, but the matter of complaint is offered to the Court by way of information given by the proper officer. That officer, if the information is exhibited in any of the Supreme Courts at Westminster, is the Attorney General, or if the office of Attorney General should happen to be vacant, the Solicitor General. (h)

Besides the Attorney and Solicitor General, who are the officers for conducting the King's business in his Courts at Westminster, the King has officers of the same description in the county palatine of Lancaster and in the duchy of Lancaster, whose duty it is to conduct the business of the Crown in the courts belonging to those jurisdictions. (i) The Bishop of Durham, as possessing jura regalia in the county palatine of Durham, has also his Attorney General for the same purpose within his jurisdiction. And it seems that the Bishop of Ely has also the privilege of appointing an Attorney General within his franchise.

*Previously to the passing of the Act of the 11 Geo. 4, & 1 Will. 4, c. 70, by which the jurisdictions of the Courts of Great ] [ #6 Session in the principality of Wales and county palatine of Chester, and of the Chamberlain and Vice Chamberlain of Chester, were transferred to the Courts at Westminster, informations on behalf of the Crown to these Courts respecting matters within their jurisdiction must have been by the Attorneys General of those jurisdictions. But since the passing of that Act, although by the 34th sect. the offices of Attorney General of Chester and of Wales are continued to

(g) Vide Attorney General to the Prince of Wales v. Sir J. St. Aubyn, Wightw. 167, and the cases there cited; vide etiam Attorney General v. The Mayor of Plymouth, ibid. 134.

(h) Ld. Red 18; Wilkes's Case, 4 Bur. 2527.

(1) The Court of the Duchy Chamber of Lancaster has both a legal and equitable jurisdiction with regard to lands within its survey, and proceedings relating to the property of the Crown within its jurisdiction are generally commenced by information by the Attorney General of the jurisdiction. Per Wood, B.; Attorney General for the Prince of Wales v. St. Aubyn, Wightw. 217. It seems, however, that the Court of Exchequer and Court of Chancery have a concurrent jurisdiction within the Duchy Court of Lancaster. Levington v. Woton, 1 Ch. Rep. 52; Toth. 135; Hardr. 171.

the present holder of them till His Majesty's pleasure shall be otherwise declared, yet, as their offices are circumscribed by the jurisdictions to which they are appointed, and the courts of equity within those jurisdictions are removed, no informations in equity can be exhibited by them, because no person who sustains the character of Attorney General in a county palatine or other jurisdiction of this description is recognized as such in Westminster Hall. (k) In this respect, however, the Attorney General for the Duke of Cornwall appears to be in a different situation from Attorneys General of counties palatine, since it has been decided, in the case of the Attorney General for the Prince of Wales v. Sir John St. Aubyn, that he may exhibit an English information on behalf of the Prince of Wales, as Duke of Cornwall, in the King's Courts at Westminster. It seems, however, that this rule holds only during such time as there is a Duke of Cornwall in existence, and that when the duchy of Cornwall is in the hands of the Crown, the King's Attorney General conducts all proceedings relating to the duchy. When there is a Duke of Cornwall who has not attained his majority, such proceedings are also carried on by the King's Attorney General, taking along with him the Attorney General for the duchy of Cornwall, not, as it seems, that he is joined as a necessary party, but rather from attention to the Duke of Cornwall in respect of his interests. (When the Duke of Cornwall comes of age, the proceedings may, it would appear, be taken up and prosecuted by his Attorney [ *7 ] *General alone. (m) And if the Duke of Cornwall should die

pendente lite, the proceedings may be carried on by the King's Attorney General by information of revivor and supplement. (n)

Besides the cases in which the immediate rights of the Crown are concerned, the King's officers may, in some cases, institute proceedings on behalf of those who claim under the Crown, by grant or otherwise, or, more correctly speaking, those who claim under the Crown may make use of the King's name, or of that of his proper officer, for the purpose of asserting their right against a third party. Thus a chose in action may be assigned to the King, and may also be granted or assigned by him to another person; and in this latter case the grantee may either sue for it in his own name or in that of the King. (0) But if he sues in his own name he must make the Attorney General a party to his suit. In Balch v. Wastall, (p) A. having outlawed B., brought a bill against C., a trustee for B., with respect to an annuity, to subject this annuity to the plaintiff's debt, and the Court held, that forasmuch as by the outlawry all the defendant's interest, as well equitable as legal, was vested in the Crown, the plaintiff must not only get a grant thereof from the Crown, but must make the Attorney General a party to the suit. (q)

Informations may also be exhibited by the King's Attorney General or other proper officer in support of the rights of those whose protection devolves upon the Crown as supreme head of the Church. Thus the King, as supreme head of the Church, is the proper guardian of the temporalities of the bishopricks; and an information may therefore be brought by the Attorney General to stay waste committed by a bishop. (r)

(k) Argo Attorney General to the Prince of Wales v. Sir J. St. Aubyn, Wightw. 178. () Vide Wightw. 255, 256, and the proceedings there cited.

(m) Vide Wightw. 246, and the proceedings there cited.

(n) Ibid. 25.

(0) Dyer, 1, Pl. 7, 8; Keilw. 1, 69; 5 Bac. Ab. tit. Prerog. F. 3; Miles v. Williams, 1 P. Wms. 252; Earl of Stafford v. Buckley, 2 Ves. 181.

(p) 1 P. Wms. 445.

(9) Vide etiam Hayward v. Fry, ibid. 446; and Rex v. Fowler, Bunb. 38.

(r) Knight v. Mosely, Amb. 176; Wither v. D. & C. of Winchester, 3 Mer. 427; Jefferson v. Bishop of Durham, Bos. & Pull. 129, 131.

In like manner the Attorney General may exhibit informations on behalf of individuals who are considered to be under the protection of the Crown as parens patriæ such as the objects of general charities, idiots and lunatics. In some instances, also, the Attorney or Solicitor General is authorized to institute informations by particular Acts of Parliament, as [ *8 ] in the case of proceedings under the Marriage Act, 4 Geo. 4, c. 76, and under the Acts (s) for giving additional facilities in applications to courts of equity regarding the management of estates or funds belonging to charities.

With respect to idiots and lunatics, it is to be observed that suits on their behalf are usually instituted by the committees of their estates; but that sometimes where there has been no committee, or where the interest of the committee is likely to clash with those of the persons whose estates are under their care, informations have been exhibited on their behalf by the Attorney General, as the officer of the Crown. (t) Where informations have been filed on behalf of persons found lunatic, but who have had no committee appointed, the Court will proceed to give directions for the care of the property of the lunatic, and for proper proceedings to obtain the appointment of a committee. (u) Persons incapable of acting for themselves, though not coming under the description of idiots or lunatics, have been permitted to sue by their next friend without the intervention of the Attorney General. (x)

It seems that when an information is filed on behalf of a lunatic, he must be named as a party to the suit, and that merely naming him as a relator will not be sufficient; (y) but in the cases of the Attorney General v. Parkhurst, (z) and Attorney General v. Woolrich, (a) a distinction appears to be taken between cases where the object of the suit is to avoid some transaction of the lunatic, on the ground of his incapacity, and those in which it is merely to affirm a contract entered into by him for his benefit, or to assert some claim on his behalf. In the former case it was held that the lunatic ought not to be named as plaintiff, because no man can be heard to stultify himself. If he is named, however, it will be no ground for demurrer. (b) The ] reason for making a lunatic a party in proceedings of this nature [ #9 appears to be, that as no person can be bound by a decree in a suit to which he or they under whom he derives title are not parties, and as a lunatic may recover his understanding, the decree will not have the effect of binding him unless he is a party to the suit; and upon the same principle it is held, that where a suit is instituted on behalf of the lunatic by his committee, the committee must be named as a co-plaintiff, in order that the right which the committee acquires in the lunatic's estate, by virtue of the grant from the Crown, may be barred. The same reason does not apply to cases of idiots, because in contemplation of law they never can acquire their senses; they are, therefore, not considered necessary parties to proceedings on their behalf. (c)

With respect to informations exhibited under particular Acts of Parliament: By the 59 Geo. 3, c. 91, which was passed for giving additional facilities in applications to Courts of Equity regarding the management of estates or funds belonging to charities, the commissioners appointed under the 58 Geo. 3, c 91,

(s) 59 Geo. 3, c. 91; and 2 Will. 4, c. 57.

(f) Attorney General v. Parkhurst, 1 Cha. Ca. 112; Attorney General v. Woolrich, ibid. 153; Attorney General v. Tiler, 1 Dick. 378; Eden, 230. (u) Attorney General v. Howe, Ld. Red. 23, n. 3. (x) Liney v. Wetherley, Ld. Red. 23, n. a. (y) Attorney General v. Tiler, 1 Dick. 378.

(z) 1 Cha. Ca. 112.

(b) Ridler v. Ridler, Eq. Ca. Ab. 279.

(a) Ibid. 153.

and 59 Geo. 3, c. 81, or any five or more of them, are authorized and empowered, whenever, upon any investigation had or taken by or before them, any case shall arise or happen in which it shall appear to the said commissioners that the directions or orders of a Court of Equity are requisite for remedying any neglect, breach of trust. fraud, abuse or misconduct, in the management of any trust created for any charitable purposes, as therein mentioned, or of the estates or funds thereunto belonging, or for the regulating the administration of any such trust, or of the estates or funds thereof, to certify the particulars of such case in writing under their hands to His Majesty's Attorney general; and thereupon His Majesty's Attorney general is authorized and empowered, if he shall so think fit, either by a summary application in the nature of a petition, or by information, as the case may require, to apply to or commence a suit in His Majesty's High Court of Chancery, or to or in His Majesty's [#10] *Court of Exchequer, sitting as a Court of Equity, stating and setting forth the neglect, breach of trust, fraud, abuse or misconduct, or other cause of complaint or application, and praying such relief as the nature of the case may require. This Act has been continued by the 2 Will. 4, c. 57, sec. 11, by which Act the Attorney general's certificate that the particulars of the case in question have been duly certified to him by the commissioners, is made sufficient evidence of such certifying by the commissioners. (e) It is to be observed, that in proceedings under these Acts the Attorney general is not considered liable to costs in the event of failure; but although as an officer suing in discharge of his public duty he can never be made to pay costs in a Court of Equity, yet it is not the rule of a Court of Equity that he cannot receive costs, and that in an information under the first-mentioned Act the defendant was ordered to pay the Attorney general his costs. (ƒ)

By the Marriage Act, 4 Geo. 4, c. 76, s. 23, it is enacted, that if any valid marriage solemnized by licence shall be procured by a party to such marriage to be solemnized between persons one or both of whom shall be under the age of twenty-one years, not being a widower or widow, contrary to the provisions of the Act, by means of such party falsely swearing as to any matter to which such party is required personally to swear, (such party wilfully and knowingly so swearing;) or if any valid marriage by banns shall be procured by a party thereto to be solemnized by banns between persons, one or both of whom shall be under the age of twenty-one years, not being a widower or widow, such party knowing that such person as aforesaid under the age of twenty-one years had a parent or guardian then living, and that such marriage was had without the consent of such parent or guardian, and knowing that banns had not been published according to the provisions of the Act, and having caused or procured the undue publication of banns; then and in every such case it shall be lawful for his Majesty's Attorney general (or for his Majesty's Solicitor [ 11 ] general in case of the vacancy of the office of Attorney general,) by information in the nature of an English bill, in the Court of Chancery or Court of Exchequer, at the relation of a parent or guardian of the minor whose consent has not been given to such marriage, and who shall be responsible for any costs incurred in such suit, (such parent or guardian previously making oath as is thereinafter required,) to sue for a forfeiture of all estate, right, title and interest in any property which hath accrued or shall accrue to the party so offend

(e) These Acts are perpetual; and it has been held that, although the Act under which the Commissioners were appointed have expired, still the Attorney general may, under the authority of those mentioned in the text, proceed upon any certificate of the Commissioners, made while their authority was in existence. Attorney general v. Bullin, Rolls, Jan. 22, 24, 1835.

(f) Attorney general v. Lord Ashburnham, 1 S. & S. 394.

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