Stuart v. Lloyd.

side say that the court do not deal with affidavits of opinion except upon ex parte applications, but this is a mistake. The 68th order does not require you to state what the amendments are; and why? Because it is the practice of the court for the junior counsel to produce, on the motion, the amendments settled, and thus to import into the case what the amendments are. It is clear from the 69th general order of May, 1845, taken with the two preceding orders, that the opinion of the solicitor for the plaintiff as to the materiality of the proposed amendments is to be stated in the affidavit; but it would have been absurd to require the facts showing the materiality, and also the solicitor's opinion as to the effect of those facts. The cases relied on by the other side were either cases under the old orders, or cases in which the solicitor did not swear, simpliciter, that due diligence had been used, and that the amendments were material, but asked the court to infer that due diligence had been used, and that the amendments were material. [They stated, that as to the materiality of the amendments, it had been the usual practice in the masters' office to be satisfied with an affidavit in the present form, unless it was met by a counter affidavit.]

LORD CHANCELLOR. Were I called upon, in this case, to review the judgment of the vice chancellor upon matters of fact, I should require a very strong case to be made out to induce me to overrule that opinion, as I think that the beter course is to rest satisfied with the opinion of one judge upon such matters. But this is a very different question, and is one simply as to the construction of the general order, which makes it a very important motion; for it is of the greatest consequence that general uniformity of practice should be observed, and not be subject to modifications of opinions. I understand, on the one side, that some of the masters require, in like cases to the present, an affidavit according to the construction contended for by the appellant; and, on the other hand, that other masters pursue a contrary practice, but I cannot find that such contrary practice has ever received the sanction of this court; and I understand that this is the first time that this question has come before this court. Now, it strikes me, that all general orders and acts of Parliament, the object of which is to prevent delay, ought to be strictly construed, in the sense of taking care that such object is not defeated, and not left open to such doubtful applications as to make the rule of little value. These orders have been framed substantially to expedite suits in chancery; and it is properly said, that the 68th of these orders applies to the present case, and that the 67th is to be incorporated into it, as it were, previous to the word "further." The 68th order states, "that after the plaintiff has filed, or undertaken to file, a replication, or after the expiration of four weeks from the time when the answer or last answer is deemed sufficient, a special order for leave to amend a bill is not to be granted without further affidavit, showing that the matter of the proposed amendment is material, and could not, with reasonable diligence, have been sooner introduced into such bill." Now, I do not think that it is correct to consider this case, beginning with the dates of July and

Stuart v. Lloyd.

August. I have no affidavit to show that the amendments arose out of matters stated or referred to in the answer; I know neither what the amendments are, nor the materiality of them. I find an answer

put in in May to a bill filed in November. What has the plaintiff done from May till December? There is an entire absence of information accounting for this great delay, although length of time in these cases is always of importance; but I am asked to look at certain proceedings in the cause, relative to some impertinence, as accounting for the delay. This is not an answer to the objection of want of due diligence in the suit; the mere attending to some impertinent matter in an answer does not satisfy the requisition of due diligence. But, then, what is the true construction of this 68th order? It is very carefully framed, and the expressions would not have been varied from those in the old order unless it had been intended to introduce a new practice; nothing could have been more dangerous. Now, the substance of the old order on this matter was, that the court should be satisfied as to the materiality of the proposed amendments, and on the subject of due diligence. The present order is, that these matters should be shown to the court. I cannot understand that that is shown to the court which is merely alleged as a fact in a general affidavit. The intention of the order is, that the delay should be accounted for. How can it be said to be shown, because a man merely swears, that, according to his opinion, the amendments are material, and that due diligence has been used? My opinion is, that this form of affidavit does not satisfy the requisitions of the 68th order, and that a party is not entitled to indulgence under it without setting forth such matters as will satisfy the party, whoever that may be, to whom the application is made, both that the proposed amendments are material, and that they could not with due diligence have been sooner introduced into the bill. It is said that this construction imposes a great burden upon the plaintiff. I do not go along with that argument. As the case is at present presented to me, it rests on mere surmise, that the question is one of partnership or no partnership. I do not think that it is necessary to set out in the affidavit formally the substance of the pleadings, but that it would be sufficient to say that the bill was filed to establish the fact of a partnership, &c., and that the defendant denies the partnership, but that he has referred in his answer to certain documents; that the plaintiff considers it necessary to amend his bill in certain particulars, &c. If, indeed, this statement should require to be of considerable length, I cannot on that account adopt a different construction. My construction of the order is, that circumstances must be shown to prove the materiality of the proposed amendments, and also to due diligence; and as to the latter, the plaintiff and his solicitor, or in some cases the solicitor alone, must swear that he has used due diligence. That, of course, must be a matter of opinion, but the court is not to be satisfied with that mere affidavit of opinion, but the further affidavit must set forth what has been actually done, to enable the court to draw its own conclusion. In proceedings analogous to this at law, where the plaintiff has not gone to trial, and a nonsuit ensues, the

The Attorney General v. Dalton.

plaintiff may move nisi to set aside the nonsuit, but he must state some good reasons why he did not go to trial; but the court invariably makes the rule absolute, upon the motion to dissolve the rule nisi, unless the affidavits very satisfactorily account for the delay. That seems quite analogous to the present case, except that here the ground for the indulgence must be shown in the first instance; a contrary practice might lead to much perjury. I am of opinion that the order of the court below must be discharged, the plaintiff to have a week to file his replication, the amendments to be expunged.

Ordered accordingly.

THE ATTORNEY GENERAL v. DALTON.1

March 18, 1850.

— · Charity Appointment of Trustees Legal Estate of Charity Prop

erty - In whom vested.

Appointment of trustees of a charity for the benefit of the poor of a parish, held to be illegal and void where the deed creating the charity did not prescribe any particular mode of appointing new trustees; but it appeared that the estate belonging to the charity was bought with the parish money, and that the parishioners had been accustomed, for many years after the institution of the charity, to exercise a control over its affairs, in the election of trustees and otherwise, but that the trustees in question had been elected and nominated by the survivors of former trustees without the intervention of the parishioners, and under a mode of proceeding of comparatively modern date.

The legal estate of charity property, under particular circumstances, presumed to be vested in the existing trustees.

THIS information was filed by the attorney general, at the relation of certain of the parishioners of the parish of St. Mary, Lambeth, to have new trustess appointed of a charity called "Hayle's Charity," and a scheme settled for the future management of the charity. The defendants were the rector and church-wardens of the parish, the district church-wardens and the incumbents of such districts, and the parties claiming to be the present trustees of the charity. The principal question was, whether the appointment of trustees of the charity was vested in the parishioners in vestry assembled, or in the trustees themselves, or a certain number of the survivors of them. The present trustees, the validity of whose appointment was impugned by the information, were not appointed by the parishioners, but by a certain number of their own body, being the survivors of the trustees last appointed. The property was about to become very valuable by the falling in of some leases, and it was a question of some consequence to the parishioners as to who should have the appointment of trustees. The circumstances under which the charity was founded were as follows: By deed, under the hand and seal of one Robert Hayle, dated the 1st of December, 1671, it was witnessed, that the said Robert Hayle had received of Thomas Tompkins and fifteen

1 15 Jur. 412.

The Attorney General v. Dalton.

other persons therein named, who were the parties of the second part to the indenture next hereinafter stated, the sum of 300l., being the consideration money for the purchase of the fee simple and inheritance of a piece of ground lying in the common fields, called "St. George's Fields," in the parish of St. George the Martyr, in Southwark, in the county of Surrey, lately purchased by them of the said Robert Hayle and Anne his wife, and mentioned in an indenture bearing even date with the said now stating deed, and made between the said Robert Hayle and Anne his wife, of the one part, and the said Thomas Tompkins and the said fifteen other persons, of the other part.

By this indenture, they, the said Robert Hayle and Anne his wife, in consideration of 300l. paid by the parties of the other part, and for other good causes and considerations, did grant, bargain, sell, alien, enfeoff, and confirm unto the said Thomas Tompkins and the said fifteen other parties of the other part, their heirs and successors forever, all that piece or parcel of ground lying and being in the common fields, and commonly called "St. George's Fields," in the parish of St. George the Martyr, in Southwark, in the county of Surrey, commonly called "The Six Acres," containing, by estimation, six acres, be it more or less, with the appurtenances, to hold the same unto and to the use of the said several parties of the second part, their heirs and assigns forever. By indenture of release, dated the 11th of January, 1700, grounded on an indenture of lease, and made between Henry Forty the elder and William Phillips of the one part, and the several persons therein named of the other part, being the rector and three church-wardens of the parish church of Lambeth, and twelve parishioners of the said parish, after reciting that the said Thomas Tompkins and the other persons to whom the conveyance in 1671 was made, by another indenture, dated the 1st of December, 1671, declared and acknowledged that the said conveyance, and all other assurances to them made of the said premises, were so to them made, and that they did by virtue thereof stand seized of the said premises, upon trust and confidence that, among other things, they and their heirs, or some of them, should manage, dispose of, and pay the rents, issues, and profits of the said premises to the rector and churchwardens, for the time being, of the said parish of Lambeth, to be from time to time disposed of for the relief of the poor inhabitants of the said parish, as the rector and church-wardens for the time being should think fit; and that whenever all the said trustees, except the number of five, should happen to die, the said five persons should convey and assure the said premises, with their appurtenances, to the use of themselves and eleven other parishioners and inhabitants of the parish, whereof the rector and church-wardens for the time being were to be four, upon the same trusts as thereinbefore and after declared; and reciting that the said Henry Forty and William Phillips were the only survivors of the several trustees mentioned in the indenture of 1671; it was witnessed, that for the nominal consideration therein mentioned, and in pursuance of the recited indenture of 1671, and the trusts thereby in them reposed, and the directions thereby

The Attorney General v. Dalton.

given, the said Henry Forty and William Phillips did bargain, sell, alien, release, and confirm, unto the parties thereto of the second part, the premises in question, upon trust from time to time to manage, dispose of, and pay the rents, issues, and profits thereof unto the rector and church-wardens for the time being of the parish of Lambeth, or to some or one of them, to be by them from time to time disposed of to or for the relief and benefit of the poor inhabitants of the said parish, as the rector and church-wardens for the time being of the said parish should think fit and judge convenient; and upon this further trust and confidence, that whensoever all the trustees thereinbefore named, and parties thereto, except five, should happen to die, they, such five, should convey the premises to the use of themselves and eleven others, parishioners and inhabitants of the parish, of whom the rector and church-wardens for the time being should be four, upon the same trusts as were thereinbefore expressed and declared. The declaration of trust recited in the last-stated indenture was lost, and the only record of it was to be found in the recital above mentioned. It was alleged in the information, that the land in question was purchased out of the funds of the parish, and that the parishioners in vestry assembled for many years exercised a control over the management of the property and the appointment of trustees; and as evidence on these points, various entries in the parish books were stated, and leases granted of the property were set forth, from which it appeared that the property was purchased with parish money, and that the parishioners had exercised a direct control over the property. Under date the 23d of June, 1725, there was an entry of the proceedings of the parishioners in vestry assembled, in which it was stated that it was agreed that ten persons therein named, together with the rector and church-wardens for the time being of the parish, should be appointed trustees with the then present trustees of the estates therein named, and, amongst others, the estate purchased by the parish in St. George's Fields, and that any five of them, with a church-warden, should be a committee, and have full power to let leases or otherwise of the said estates for the best advantage of the parish. There were other entries, showing control exercised over the property by the parishioners in the years 1742, 1753, 1763, and 1768; and in February, 1769, it being necessary to borrow a sum for parish purposes, the parishioners in vestry assembled adopted the report of a committee appointed for the purpose, in which they recommended money to be raised by annuities, to be charged on, amongst other property, Hayle's estate in St. George's Fields. In 1769 new trustees were appointed, and, by an indenture, dated the 10th of June, 1769, between James Theobald, therein described as the only son and heir of James Theobald, Esq., deceased, who was the eldest son and heir, and one of the devisees named in the last will of Peter Theobald the elder deceased, and Peter Theobald, one other of the sons and devisees of Peter Theobald the elder, of the one part; and the Rev. Beilby Porteus, D. D., rector of the parish, and three church-wardens and thirteen other persons, inhabitants of the parish, of the other part; after reciting the indenture of the 1st of December, 1671, and the indenture of