Actions where the Attorney-General is a Defendant.

General Observations.

Where the rights of the Crown are immediately in question, and proceedings against the Crown are possible, they must be taken by petition of right (see above, p. 330), but where the interests of the Crown are only incidentally concerned in proceedings, the Attorney-General on behalf of the Crown may and must be made a defendant. See Reeve v. A.-G. (1741), 2 Atk. 223, and what is said of this case in the argument in Penn v. Lord Baltimore (1750), 1 Ves. Sen. 444, 446. In Pen v. Lord Baltimore (1745), Ridg. t. H. 332, 336, the Court, in holding that to a suit to settle boundaries between proprietors of provinces granted by the Crown the Attorney-General should be a party, said: "It is true you cannot always have a decree against the Attorney-General, yet he must always be a party." See also Casberd v. Ward (1819), 6 Price, 411; Ryves v. Duke of Wellington (1846), 9 Beav. 579; 15 L. J. Ch. 461; Delany v. Firman (1849), 12 Ir. Eq. R. 304. If he is not made a party, the Court will refuse to proceed, unless it is clear that the result of the proceedings must benefit, or at least cannot be prejudicial to, the interests of the Crown. See Dolder v. Bank of England (1805), 10 Ves. 352; Dolder v. Lord Huntingfield (1805), 11 Ves. 283; Stafford v. Earl of Anglesey (1661), Hard. 181; Hovenden v. Lord Annesley (1805), 2 Sch. & L. 607; Green v. Weston (1837), 3 My. & Cr. 385; 7 L. J. Ch. 67. In such a case, where the Crown's title appears upon the record, although the Attorney-General makes no claim, the Court cannot decree against such title. (Barclay v. Russell (1797), 3 Ves. 424.)

Whether the Attorney-General puts in a defence or not, in cases where he is made a defendant, will depend upon his view as to what is demanded by the interests of the Crown or of public justice; but usually, where he does not wish to raise any substantial defence, he will file a formal plea praying the Court to take care of the interests of the Crown in a form similar to that printed below, p. 555. See also the form in Perkins v. Bradley (1842), 1 Hare, 219, 223. Reference may be made to Davison v. A.-G. (1813), 5 Price, 398, n.; and Errington v. A.-G. (1731), Bunb. 303.

Where the Attorney-General represents the Interests of Charities.

Apart from Statute.

A general rule was thus stated in Ware v. Cumberlege (1855), 20 Beav. 503; 24 L. J. Ch. 630: "The Attorney-General represents all

absent charities, and it is sufficient to have him here to represent all absent charities. But absent charities may obviously be of two different characters: they may either be under gifts to specified individual charities, or to charity generally. In case the gift is to charity generally, no one can represent it but the Attorney-General, and he must be here to represent such general charities. When there are specified individual charities, then the Attorney-General's presence is not universally necessary; but it is required by the Court upon various occasions, as, for instance, where any rules are required for the regulation of the internal conduct of the charity itself, such as theestablishment of a scheme and the like; there the Attorney-General is necessary for the purpose of aiding and assisting the Court in directing and sanctioning the general system and principle that ought to govern charities of these descriptions. But there are other cases where there is no question as to the conduct or management of the charities, but only whether the charity is entitled to a particular legacy or not. In these cases, the Attorney-General is rather in the nature of a trustee for those charities, and the Court prefers having before it the charities beneficially interested, for the purpose of putting their interests before the Court in the light which they consider most favourable to them. In those cases I think it preferable that the charity itself should appear, rather than that the Attorney-General should represent it." See also Potts v. Turnley (1849), 1 Ir. Jur. (O. S.) 57; Fagan v. Howley (1887), 22 I. L. T. R. 7; In the Goods of Young (1873), Ir. R. 7 Eq. 218.

As to the presence of the Attorney-General where a scheme is to be settled, see Re Sekeford's Charity (1861), 5 L. T. 488; A.-G. v. Goldsmiths' Co. (1833), C. P. Coop. 292; A.-G. v. Haberdashers' Co. (1835), 2 My. & K. 817; In re Wyersdale School (1853), 10 Hare, App. II. lxxiv. He need not be a party where the questions to be settled concern a merely voluntary and private charitable institution, as in Anon. (1745), 3 Atk. 277.

In Warden and Brethren of Clum Hospital v. Lord Powys (1842), 6 Jur. 252, and Governors of Christ's Hospital v. A.-G. (1846), 5 Hare, 257, trustees were permitted to file a bill, making the Attorney-General a defendant, for the purpose of having the accounts of a charity taken, and in order to obtain their own discharge and the settlement of a scheme, although the usual proceedings for such a purpose would be an information by the Attorney-General. Compare Monill v. Lawson (1719), 2 Eq. Ca. Abr. 167, pl. 13.

The presence of the Attorney-General, where a fund may have been bequeathed to a superstitious use, or is otherwise in such a position as to be applicable to a charitable purpose, not superstitious, according

to the pleasure of the Crown expressed under the Sign Manual, is dealt with in De Themmines v. De Bonneval (1828), 5 Russ. 288; 7 L. J. Ch. 35; and Felan v. Russell (1842), 4 Ir. Eq. R. 701.

Where a legacy is given to an established charity to become part of its general funds, the Attorney-General need not be made a party, but he must be a party where a charitable legacy is given to persons having no corporate character (Wellbeloved v. Jones (1822), 1 Sim. & S. 40; 1 L. J. (O. S.) Ch. 11); or where the legacy is given to an established charity, but upon trusts not corresponding to those upon which its general funds are held. (Corporation of the Sons of the Clergy v. Mose (1839), 9 Sim. 610.) See also Chitty v. Parker (1792), 4 Bro. C. C. 38; In the Goods of McAuliffe, [1895] P. 290 ; 64 L. J. P. 126; and Magill v. Murphy (1870), 4 I. L. T. News. 472.

Where the management of no charity revenue is concerned, as, for instance, where those who are objects of the charity call upon the trustees to perform some duty or other, the Attorney-General need not be a party. See the cases cited in Lewin on Trusts (ed. 11), 1174, n., and compare A.-G. v. Warren (1818), 2 Swanst. 291.

Service on the Attorney-General, who had not been made a party to the suit, of a decree directing inquiries was held not so far to bind the Crown as to preclude the institution on behalf of the Crown of further inquiries. (Johnstone v. Hamilton (1865), 11 Jur. (N. S.) 777.)

By Statute.

The Charities Procedure Act, 1812 (52 Geo. III. c. 101).—The Attorney-General merely certifies his allowance of petitions under this Act, and is not made a party to them (In re Chertsey Market (1819), 6 Price, 261), but, in the days when he was entitled to take private business, he might appear for the respondents on such a petition. (Ludlow Corporation v. Greenhouse (127), 1 Bli. (N. S.) 17.) But it is said that he ought to be a party to all inquiries before the Master under the Act. (A.-G. v. Earl of Stamford (1840), 1 Ph. 737; 10 L. J. Ch. 58; In re Hanson's Trust (1852), 9 Hare, App. I. liv.)

The Charitable Trusts Act, 1853 (16 & 17 Vict. c. 137).-Applications under the Act (by persons other than the Attorney-General), unless confined to the appointment of trustees and the obtaining of any vesting order or orders for the transfer of stock consequent thereon, should be served on the Attorney-General, by means of service on the Treasury Solicitor of a copy of the summons sealed for service. (Daniell, C. P. (ed. 7), 1754.)

The Charitable Trusts Act, 1860 (23 & 24 Vict. c. 136).—A petition of appeal under sect. 8 of this Act shall not be presented by any person before the expiration of 21 days after written notice, under the

hand of the appellant, of his intention to present the petition, has been served on the Attorney-General by delivery of the same to the Treasury Solicitor. (Charitable Trusts Act, 1869 (32 & 33 Vict. c. 110), s. 11.) By sect. 9 of the Act of 1860, the Attorney-General, if he thinks fit, or any person authorised by him or by the Charity Commissioners, may appear as respondent. Upon any such appeal the Court may make any order respecting the costs, charges, and expenses of the Attorney-General or other respondent.

Where the Attorney-General represents the Heir-at-Law.

Where the heir-at-law is a necessary party and cannot be found or does not exist, the Attorney-General must be made a defendant in his stead, as in Thruxton v. A.-G. (1685), 1 Vern. 340; Humberston v. Humberston (1716), 1 P. Wms. 332; Burgess v. Wheate (1759), 1 Eden, 177 (see at p. 181); Smith v. Bicknell (1805), 3 V. & B. 51, n.; Miller v. Warmington (1820), 1 Jac. & W. 484.

Where the Attorney-General represents the Next of Kin.

As in the case of an heir-at-law, the Attorney-General must be made a defendant in lieu of the next of kin, where the action affects their interest and they cannot be found, or where there are no next of kin, as in Middleton v. Spicer (1783), 1 Bro. C. C. 201; In re Wilcocks' Settlement (1875), 1 Ch. D. 229; 45 L. J. Ch. 163; Murphy v. Osborne (1846), 9 Ir. Eq. R. 254, and many other cases. So in Long v. Wakeling (1839), 1 Beav. 400, where administration had been granted to a sister of the deceased, and it turned out that the deceased was illegitimate, the Court refused to pay his share of a fund in Court to the administratrix, but ordered it to be carried to a separate account, and not to be paid out without notice to the Crown. In Jones v. Goodchild (1729), 3 P. Wms. 33, a suit by the executor of a bastard's mother to recover property bequeathed to the bastard, now deceased, the Court held that, as the executor had the legal title to the property, the Attorney-General was not a necessary party.

So where the next of kin of a lunatic are unknown, a petition in lunacy should be served on the Attorney-General, and not on the Treasury Solicitor. (In re Bourke (1864), 2 D. J. & S. 426.) See further below, p. 530.

In Bell v. Alexander (1847), 6 Hare, 543, the Court held that the Attorney-General, as a party, did not sufficiently represent the estate of an intestate bastard to enable the Court to dispense with the presence of a properly constituted legal personal representative of the bastard. So also Lewis v. Lewis (1852), 16 Jur. 324; contra, M'Kiernan v. Kernan (1841), Flan. & K. 352; 4 Ir. Eq. R. 269.

It was said in Robson v. A.-G. (1843), 10 Cl. & F. 471, that the Court will lean strongly towards applications for further investigation in cases in which property falls to the Crown, as that generally happens not from want of next of kin, but from failure of legal evidence of their title. This observation, of course, does not apply to cases in which the Crown has taken property owing to illegitimacy.

Proceedings affecting the Crown's title to Property of Aliens and Outlaws.

The title, if any, of the Crown to the realty of aliens since the Naturalization Act, 1870, is dealt with above, pp. 421, 431.

Forfeiture for treason or felony was abolished by the Forfeiture Act, 1870 (33 & 34 Vict. c. 23), s. 1, but forfeiture consequent upon outlawry was preserved. It would be necessary to make the Attorney-General a party to proceedings which affected the Crown's title to the property of aliens and outlaws, so far as it still exists. For cases where the Attorney-General was made a party in respect of outlawry the reader is referred to Balch v. Wastall (1718), 1 P. Wms. 445, and Anon. v. Bromley (1725), 2 P. Wms. 269. In Bromley v. Smith (1859), 26 Beav. 644; 29 L. J. Ch. 18, where a plaintiff was outlawed pending the suit, it was held that the Attorney-General should not be made a party in respect of the outlawry, unless a question was raised with regard to its validity or enforcement.

Cases with regard to aliens, which may be referred to, are Burk v. Brown (1742), 2 Atk. 397, and In re Martinez' Trust, [1870] W. N. 70; 22 L. T. 403; see also Tomkins v. Lane (1854), 2 W. R. 340, where it was said that the proper form of order for payment out of Court of money standing to the account of a felon was that the money might be paid to such persons as Her Majesty might by sign manual appoint; and In re Bateman's Trust (1873), L. R. 15 Eq. 355; 42 L. J. Ch. 553.

Where the Attorney General represents the Public.

In Ellis v. Duke of Bedford, [1899] 1 Ch. 494; 68 L. J. Ch. 289, which was an action by certain growers on behalf of themselves and all other growers within the meaning of a private Act against a lord of a market to enforce certain alleged preferential rights, it was held by the Court of Appeal that the plaintiffs as representing the class of growers could maintain the action, but that the Attorney-General must be added as a defendant to represent the rest of the public who were interested in disputing the alleged preference. But in the House of Lords (s. n. Duke of Bedford v. Ellis, [1901] A. C. 1; 70

C.P.

I I