1839. The Attorney General v. Clack. evidence that Mr. F., who was the invalid trustee, was in such a state of mind as to make it imperative upon the court to interfere. Those [*469] who adopt that argument or those who gave that *advice seem to have totally forgotten the jurisdiction which this court has, to interfere in matters of discretion in these cases of charity, even where assistance may not be wanted in aid of a right. At the time when things stood thus with respect to the trustees, the situation of the property was such as to be worthy of some consideration; though I must say, that considering the nature of this charity, the questions which arose upon it were of a very trifing nature, and might very easily have been settled. There was a demand for costs against the charity on the part of a person of the name of Bartlett, who, being a re'ator, seems also to have been solicitor in the prosecution of a former information, upon which an order had been made; he had a considerable demand for costs, under an order which had been made in that suit in the year 1826; that suit, however, was so prosecuted, that the order was not, as it seems, drawn up till the year 1829. There was at the time a sum of 3817., the amount of rents previously received, which remained in the bank in which one of the trustees was a partner, subject, however, to be called out by virtue of bankers' notes which were in the possession of the solicitor of the late Lord Devon, who had also a demand for costs; but setting aside the consideration of the latter demand, there was on the one hand a demand for costs on the part of Mr. Bartlett, who had the title deeds of the charity property in his possession, and on the other hand, there was a sum of 3811. lodged in the bank, and also a sum of stock remaining in the Bank of England in the names of two of the trustees. which might have been a fund very properly applicable to the payment of those costs. In this state of things, the information is filed-an information, which, as it is stated, contained no im putation of misconduct against the trustees-which alleged no mis[*470] application or nonapplication of the *charity funds--which did not even ask for an account of the trustees' receipts and payments on account of the charity, but which asked, that new trustees might be appointed, that the lien which was claimed by Mr. Bartlett (if he had any lien) might be satisfied, and that the outstanding property belonging to the charity might be got in. I do not think that there was any impropriety in filing that information; it seems to me to have been justified by the state in which the charity then was. I wish indeed that I had been informed whether, prior to the filing of the information, application had been made to the remaining trustees, to see how far they would consent or agree to do that which was right, without incurring the expense of this suit; as that is not stated to be so, I take it for granted that no such prior application was made, and we find in the evidence of one of the witnesses, that Mr. F. complained that the information had been filed at the relation of his friend and acquaintance, and that he considered it was unneighborly and unkind-it is not material what were the exact words; the information, however, was filed, containing no 1839. The Attorney General v. Clack. improper charge and asking for nothing which the situation of the charity did not seem to require. That being so, and considering that the trustees. were themselves in a state of difficulty and perplexity with respect to the appointment of new trustees, one is a little surprised that they did not immediately take advantage of the information thus filed, and ask for the directions of the court, to relieve them from the difficulties under which they then labored. Instead of that, and upon their own power and authority, they immediately proceed in their own way to settle these matters without the concurrence, guidance, assistance or protection which the court would certainly have afforded them; they come to some agreement with respect to the claim which was made by Mrs. Bartlett, the representative of [*471] her husband, and to the funds that were applicable to the satisfaction of that claim; and they proceed through the difficulties which beset them, to the appointment of new trustees and the execution of a conveyance to those new trustees. They state that Mr. F., whose state of mind had been a difficulty in their way before, had considerably recovered; and they took upon themselves, and at their own risk, to have it ascertained according to their own method, that Mr. F. had recovered his state of mind sufficiently to enable him to perform the act required of him. They have him examined by medical persons, and having satisfied themselves by this examination, they determine for themselves that Mr. F. is in a proper state of mind; and shortly after they were served with the subpoena, they have the deeds prepared, and have them executed in the beginning of November; they then put in their answer, in which they state what they have done in that respect, but they wholly omit to state that they have made any arrangement with respect to the funds-they conceal from the relators and from the court that they had entered into any arrangement of that kind. The case, as far as it was known to the relators, appeared in that respect exactly in the situation in which it was at the time when the information was originally filed in the month of October; the consequence is this, that a supplemental information was filed stating the additional fact, which had been communicated by the answer, that the remaining trustees had taken upon themselves to determine upon the state of mind of Mr. F., and to determine who were the proper persons to be appointed new trustees, and had actually executed a deed for that purpose. The consequence of this mode of proceeding is certainly very much to be regretted, and if the costs of this information were to fall upon the charity, it would indeed be very deplorable. "The parties [*472] proceed into evidence at great length, many witnesses are examined on both sides, for the purpose of inducing the court to believe what was or what was not the state of Mr. F.'s mind-whether he was in a state of mind competent to do the act. In the next place evidence is gone into, at very great length, for the purpose of showing that the persons who were selected to be trustees, were in all respects proper persons to be trustees, and that in fact if they had been chosen under the direction, and with the assistance and 1839. The Attorney General v. Clack. protection of the court, better men could not have been found. This cause now comes to a hearing, enormous expense has been incurred, and the question is, what is to be done for the good of the charity? In the first place, I am of opinion that with respect to the funds there ought to be an inquiry, whether any arrangement has been made between the parties for the settlement of the lien, and if there has been such, whether it can be carried into effect, and whether it will be beneficial to the charity that it should be carried into effect. With respect to the appointment of the trustees, the question no doubt is a very important one. What is asked here is, that the appointment may be declared null and void, and that it may be declared to be a contempt of court. Now I am of opinion that I can make no such declaration as to its being a contempt of the court; but I am of opinion, that the conduct of the trustees in making the appointment of their own authority, under all the circumstances of the case and after the filing of the information and after they had been served with a subpoena, was on their part an extremely improper act. I think they ought to have put in their answer and to have stated the case truly,-to have stated in their answer, if they could have stated truly, that Mr. F. was recovered, and was competent to act; they [473] ought to have stated they were willing to *appoint new trustees, and they ought then to have applied to the court, either that they might be at liberty to appoint new trustees, or that there might be a reference to the Master for that purpose. It is said that an application might have been made on the part of the relators, but how could it? Did the defendants state their case fairly and candidly upon the answer, so as to enable the relators to do what would have been proper upon such an occasion? so far from it, they first of all attempt to complete the act, and then leave the relators to such means as they had to get rid of it, and also get rid of the deed. I am of opinion upon such a case as this, that the appointment after the filing of the information, though not to be considered as an act altogether void in itself,(a) did put the burden upon the defendants of proving, and that by the strictest evidence, that what they had done was perfectly right and proper, and also imposed on them the necessity of paying the costs of such proof. They choose to take upon themselves the risk of doing that act, and of withdrawing the matter from the jurisdiction of the court: as they thought fit to do so, they are bound to prove that that which they had done was rightly done; and I am of opinion that according to the practice of this court, the expense of bringing forward that proof should fall upon them; and if the matter remains in a state of difficulty, I think that there is ample authority and jurisdiction for the court to say, that the appointment ought not to stand at all. And considering the whole of this matter, it not being a case of persons who were clearly competent in respect of numbers, or in which they might have acted if they had all been competent,-considering the nature of this case (a) See Webb v. Earl of Shaftesbury, 7 Ves. 480. 1839. Traile v. Bull. and the evidence which has been gone into, and the circumstances attending the appointment, I think they have not shown that the [*474] appointment was perfectly right and proper, and I am therefore of opinion that it ought not to stand at all, but ought to be set aside, and it must therefore be referred to the Master to appoint new trustees. The case remains in the state in which it would have been upon the first information, which, it appears to me, was properly enough filed. The answer undoubtedly showed improper conduct on the part of the trustees; and I think that upon that information, there must be the reference which I have mentioned, to inquire as to the arrangement with Mrs. Bartlett, and to appoint new trustees the costs which have arisen from this long investigation, (I do not say the costs of the first information but of the second information,) and of the evidence gone into with respect to Mr. F., and with respect to the fitness of the new trustees, must be borne by the defendants; and considering the resolution which has been entered into so improperly-that those costs are to be borne out of the charity funds-I consider it my duty to take care that the costs directed to be borne by the defendants shall be paid by them personally; the other costs will be reserved. His Lordship afterwards gave leave to the new trustees who had been appointed to propose themselves before the Master. *TRAILE V. BULL. [*475] 1839 : July 6, 20. A plaintiff having obtained an order of course to amend, after the time limited for that purpose had expired, and the defendant being in a condition to move to dismiss for want of prosecution: Held that a single notice of motion to discharge the irregular order and to dismiss the bill was not irregular on the ground of multifariousness. THIS was a motion on behalf of the defendant, "that an order to amend, dated the 18th of May last, might be discharged for irregularity, and that the bill might stand dismissed with costs," under the following circumstances:The defendant's answer was filed on the 25th of January, 1839, the time for excepting under the fourth general order(a) expired on the 22d of March. The time limited by the thirteenth general order(b) for obtaining, without notice, the common order to amend the bill, expired on the 3d of May, and there being but one defendant, he was, on the 17th of May, in a condition to move to dismiss the bill for want of prosecution under the sixteenth general order ;(c) on the 18th of May, however, the plaintiff obtained the ex parte order to amend his bill. Mr. J. Evans, in support of the motion. The order to amend is clearly irregular, and the defendant might have treated it as a nullity, De Geneve v. (a) 2 Rus. App. 6. VOL. I. (b) 2 Russ. App. 8. (c) 1 Russ. & My. 770. 1839.-Traile v. Bull. Hannam,(a) or have moved to discharge it.(b) The recent case of Lloyd v. Wait(c) shows that the two objects sought on the present occasion may be joined in one notice of motion. [*476] *Mr. Tripp, contra. The notice of motion is multifarious, seeking two distinct objects, namely, the discharge of an order and the dismissal of the bill. The defendant having given notice to discharge the order of the 18th of May, has thereby recognized it as an order, and cannot now say it is a nullity; until the order to amend has been discharged, which it cannot be on this notice of motion, the motion to dismiss cannot be made. He stated that the subject matter of the suit was property limited to the separate use of Mrs. Traile when unmarried, and that the husband and wife. had been joined as co-plaintiffs. He asked, therefore, that the case might stand over until the Lord Chancellor had delivered judgment in Tullett v. Armstrong, (d) in order to give the plaintiff an opportunity of correcting, if necessary, the frame of the record. That this had been done in England v. Downs.(e) July 20. THE MASTER OF THE ROLLS:-The time for amending having expired and the defendant being in a situation to move to dismiss the bill the plaintiff irregularly obtained an order to amend; and now the defendant moves that that order to amend may be discharged, and that the bill may be dismissed for want of prosecution. The complaint is, that it is irregular to join these two things together. If the bill were dismissed, the order to amend would go for nothing; why then should the notice be invalid merely becau-e it asks for a litle more than the party thinks is required? I do not think it so now, nor did I when the motion was originally made; and it being [*477] said there *was an authority in point, it stood over for the purpose of producing it. No authority has been produced, and thinking that there is nothing improper in this motion, I must grant it; the consequence is that the plaintiffs must undertake to speed the cause, unless there is any special ground. There are specialties in this case which create the difficulties adverted to by the plaintiff's counsel; but the general orders have pointed out particular instances in which a motion to dismiss for want of prosecution shall not prevail ;(g) and the existence of a doubt as to the proper joinder of husband and wife as co-plaintiffs in a suit, is not among them. I think the cause ought not to be stayed for that reason; and the plaintiffs must, therefore, undertake to speed, if they desire to go on with the suit. (a) 1 R. & Myl. 495. (b) The King of Spain. v. Hullett, 1 R. & Myl. 7. n. (c) Before the Lord Chancellor, May 22d, 1839. (e) Ante, p. 96, and 8 Sim. 554, n. (g) Under the sixteenth order the bill is to stand dismissed, except in three cases; first where the plaintiff undertakes to speed; secondly, where he undertakes to hear the cause on bill and answer; and thirdly, where it appears that the plaintiff is unable to proceed, by reason of any other defendant not having sufficiently answered, and that due diligence has been used to obtain an an swer. |