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On a petition presented by some of the trustees of a charity school, praying that the trustees acting in the management of the charity, might be ordered to produce the trust deed for the inspection of the petitioners—that the trusts might be ordered to be performed under the directions of the court that the appointment of a chaplain with a salary, and the using the upper part of the building (which had been erected for the purpose of the school) as a chapel, might be declared to be contrary to the trust, and directed to be discontinued-and for an account of the application of money received by the treasurer on the part of the charity.

Richards, C. B. observed, "this court being called on to interfere with respect to this particular charity, must not fail to recollect that it has no existence except from the daily and voluntary contribution of the subscribers, who may withhold their subscriptions to-morrow, when there would be an end of the institution altogether. If we had any jurisdiction in a case of this description, it would be a most injurious thing to make an order now, in its nature decretal, in a case wherein before that order should reach Macclesfield, the institution might in consequence be put an end to. But without entering into the consideration of that part of the subject, although it is extremely important, it is material to consider the nature, foundation, and object of this charity, supposing it permanent.

"It appears quite clear that the appointment of the person who preaches, does not encroach on that part of the charity, the care of which is the only subject matter of this petition to which we can attend; and any person who contributed to the benefit of the charity, had a right to say, that he gave one half to the children, and the other half to the benefit of the person who preaches to the institution. Under these circumstances, it seemed first, that it was a voluntary charity with which the court did not know how to deal; secondly, that upon the construction of the deed itself, by which their conduct is to be wholly directed, there was nothing in evi

dence to show that the acts of the respondents had been, in any degree, contrary to the directions of that deed, the petition was therefore dismissed.

"It was clear that the school must be conducted according to the deed so as best to effect its object, the education and religious instruction of the children of the labouring poor. But the deed was not contravened at all, unless doctrines had been taught there contrary to the leading principles of the established church. Where an institution is founded with permanent funds for the education of the poor, the trustees cannot apply such funds to other purposes; but where funds are supplied by subscribers, who know the purposes to which they are to be devoted, those persons may, certainly, apply them to any purpose, and the committee may allow them the use of this room, even according to the deed, for the accommodation of those who might be desirous of using it as a place of meeting for religious worship, provided there be not promulgated there, doctrines adverse to those of the established church, and such accommodation do not interrupt the business of the school." (i)

Where a petition is presented for carrying a charity into execution, and for calling for the rents and profits of the charity estate, all who were concerned in the trust must be before the court, which will not entertain charges against one of several trustees, or his representatives, on the ground of his being the acting trustee, nor compel his representatives to account for his proportion when the other trustees or their representatives are not before the court (k).

Petitioners complaining of the acts of a trustee at such a distance of time as renders it impossible for him to make such a defence as he might otherwise have done, will not be entitled to relief. Where the act complained of took place in 1809, and the trustee died in 1812, the not presenting a petition until six years afterwards, was held such delay as

(i) Ex parte Pearson in re Macclesfield School, 6 Price, 214. See ante, pp. 419, 420.

(k) In re Chertsey Market, 6 Price, 278, 9.

would bar the right of proceeding against the representatives of the trustee, although in this case there was no breach of trust (1).

After an order of reference to the master in pursuance of a petition under the stat. 52 Geo. III. c. 101, the subsequent applications, as to confirm the master's report, may be made by motion without petition (m).

On a petition to confirm the master's report under a reference, a counter petition may be presented excepting to the report (n).

A petition having been presented for regulating a charity under the 52 Geo. III. c. 101, and an order made, upon petition, for the payment of a sum of money to the schoolmaster, it was held, that an application for enforcing the order might be made upon a motion without a petition (0).

In a charity petition, to which the trustees of a charity were respondents, and had been ordered to pay the costs of the petition, upon an application relative to the service of the order, it was held that the trustees, being respondents, were parties to the petition, and therefore that the case was not within the 44th of the new orders of 1828 (p).

The master is not bound to adopt a mode of proceeding different from the court, which will decide petitions under the act upon affidavits; and therefore upon an order made on a petition, directing certain inquiries to be made by the master, affidavits may be received by him in evidence, and

285.

(1) In re Chertsey Market, 6 Price, whenever a person who is not a party appears in any proceeding, either before the court or before the master, service upon the solicitor in London, by whom such party

(m) In re Slewringe's Charity, 3 Mer. 707. See ex parte, a Friendly Society, 10 Ves. 287.

(n) Ex parte Fowlser, 1 Jac. & appears, whether such solicitor act Walk. 71.

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as principal or agent, shall be deemed good service, except in matters of contempt requiring personal service."

his report made upon them without the evidence of witnesses examined before him, or before commissioners upon interrogatories (q).

A person who was not a party to a petition in the court below, cannot appeal to the House of Lords; and will be compelled to pay the costs of an attempt to interfere in that way (r).

In a charity information it is irregular for persons, being inhabitants of a parish interested in the charity, but not being parties to the information, to present a petition in the cause; nor is the irregularity cured by the circumstance of a defendant in the information joining with them as a petitioner (s).

By stat. 59 Geo. III. c. 91, s. 5, it is enacted, "that whenever it shall appear to the trustees of any free-school, hospital, or other charitable institution or donation within the provisions of that act, that the statutes or regulations thereof are insufficient for the secure and due administration of the funds thereto belonging, it shall be lawful for such numbers of them as are by the said statutes or regulations empowered to do any act, by and with the consent of any five or more of the said commissioners (appointed to inquire concerning charities), to present a petition to the lord chancellor, lord keeper, or lords commissioners of the great seal, or to the Court of Exchequer sitting as a court of equity, praying such relief as the nature of the case may require; and the lord chancellor, lord keeper, and lords commissioners of the great seal, and the said Court of Exchequer, are thereby authorised and empowered to give such directions, and to make such order, touching the matter of the said application, as to them respectively shall seem fit; which order shall be final and conclusive to all intents and purposes whatsoever, unless the party or parties who shall think himself or themselves aggrieved thereby shall, within two years after the time when such order shall have been

(q) Ex parte Greenhouse, 1 Swanst. 60; S. C. 1 Wils. C. C. 18.

(r) 1 Bligh, N. S. 73, 89.

(s) Attorney General v. Lechmere, 3 Law Journ. Chanc. 125.

made and entered by the proper officer, prefer an appeal from such order to the House of Lords, to whom it is hereby enacted and declared that an appeal shall lie from such order."

2. Of petitions in the name of the attorney general.] The statute 59 Geo.III. c. 91, authorising the attorney general to make a summary application, by petition, to a court of equity, in cases which have been certified by the charity commissioners, has been already noticed (t). Numerous petitions have been presented in the attorney general's name at the instance of the charity commissioners. The following are some of the objects sought to be attained. For the appointment of trustees of the charity estates, and for vesting the estates in them, and for a scheme for the regulation of the charity (v).

For an account of rents and profits, the removal of trustees, and the appointment of others, and for settling a scheme for the regulation of the charity (u).

For ascertaining the rights and interests of the schoolmaster and almsmen in the revenues, and for a reference to the master to take an account of the charity property, and to approve a scheme for the due application of the revenues (w).

For ascertaining what townships were entitled to the benefit of a charitable bequest, and for directions for the due application thereof (x).

For establishing a charity for relieving the master of a free-school from conditions which had become impracticable, and for declaring in what manner the income ought, under the circumstances, to be applied (y).

For proof of a balance due from a trustee of a charity, under a commission of bankrupt against him for payment of

(t) Ante, pp. 428, 430.

(v) In re Bampfield's Charity, 5th Nov. 1825; 22nd Jan. 1827.

(u) In re Bateman's Charity, 5th Nov. 1823.

(w) In re Tadcaster School and Hospital, 21st Jan. 1826; 10 Charity

K K

Rep. 722.

(x) In re Ward's Charity, 26th July, 1823; 2nd June, 1825; 7 Charity Rep. 512.

(y) In re Hutton's Charity, 7th Aug. 1827; 21st Dec. 1827.

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