the present can be. It remains now to mention briefly the particular duties cast upon the court by the legislature, which, though allied in their nature to some of the ordinary proceedings of a court of equity, depend entirely upon their statutory origin for their present existence, so that the powers of the court are limited and defined by the statutes which created them.

Statutory jurisdiction of the court.

Companies.

Of these duties and powers, the most prominent at the present day are those which the Court of Chancery exercises in winding up public companies. The great extension of commercial enterprise in recent times, as developed through the medium of incorporated associations, consisting of numerous individuals, but acting as a single indivisible unit, is unhappily attended by dangers not differing in their nature from those which threaten smaller associations of two or three members constituting a private partnership. The legislature has, it is almost needless in the present day to remark, determined (working according to its habit by tentative measures, set forth in successive acts,) the laws which regulate the formation, the continuance, and what is more to our present purpose, the dissolution of these associations. Under these acts the Court of Chancery has been constituted the tribunal to take charge of the administrative business which the dissolution of a company and the winding up of its affairs involve, whenever that administration requires the intervention of a court of justice (x). Under the principal *act now in force (The Companies' Act, 1862, 25 & 26 Vict. c. 89), [*76] the court entertains in a summary way applications, by petition, to wind up companies, and the collection and distribution of the assets are made under the direction of the court (y). Other duties in connection with the affairs of companies, not being wound up, are also cast upon the court. By the same act, the court has power to rectify the register of members, if the name of any person is without sufficient cause entered in or omitted from the register (z). Also under the later act of 1867 (30 & 31 Vict. c. 131), the court has other duties to perform relative to schemes for reducing the capital of companies. To these we need not refer in detail.

Somewhat analogous to the duties of the court relative to companies generally, are some special provisions made by the legislature for railway companies. Under certain circumstances, schemes for the arrangement of the affairs of these companies, when they are in financial difficulties, may be proposed to the court (a).

Another most important power conferred by the legislature upon the court, is that which it exercises in favour of creditors, for the purpose of enabling them to obtain satisfaction of their debts by sale of the lands of their debtor. We have elsewhere shown how lands were by slow degrees made available as

(2) See sect. 81 of the Companies Act, 1862 (25 & 26 Vict. c. 89); it will be observed that for a mining company within the jurisdiction of the court of the Stannaries, that court has also cognisance, but not exclusive cognisance. In re Penhale and Lomax, &c. Co., L. R. 2 Ch. 398.

(y) The rules for winding up were issued 11 Dec. 1862.

(2) S. 35. There is some conflict of judicial opinion as to the extent of the jurisdiction

under this section; see Ex parte Swan, 7 C. B. 400; Stewart's Case, L. R. 1 Ch. 584; Ward and Henry's Case, L. R. 2 Ch. 231; Ex parte Parker, ib. 690; Head and White's Case, L. R. 3 Eq. 84.

(a) See 30 & 31 Vict. c. 127. The rules and orders upon which act were issued 24 Jan. 1868. As to what the scheme must provide for, and the powers of the court under the act, see Re Cambrian Railways, L. R. 3 Ch. 278.

Payment of debts

assets for the payment of debts; and we here only point out, that it is by the aid of this court, that the creditor is able to proceed to the comby sale of land. plete remedy, by sale of the lands, which the law allows. [*77] *This, in the case of a deceased debtor, was given by the act 3 & 4 Will. 4, c. 104. In the case of a living debtor, there were no means of applying the lands themselves to the purpose of paying debts by a sale of them until the year 1838, when the act 1 & 2 Vict. c. 110, was passed, and then, and for a long period afterwards, the process remained tedious and costly; but now a creditor who has obtained judgment, and taken the lands in execution under a writ of elegit, may obtain an order for their sale in a simple and speedy manner by petition to the court (b). Upon hearing the petition, the court directs inquiries to be made as to the debtor's interest in the land and his title thereto, and as far as possible conducts the sale in the same way as in the other case, where the lands of a deceased person are sold for the payment of his debts (c).

infancy.

Inasmuch as cases of trust and those relating to infancy are naturally the subjects of the care of the Court of Chancery, any improvements of the law, Trusts and or facilities for the satisfaction of the wants of society which the legislature might devise, would of course take effect by the agency of the Court of Chancery; accordingly we find that several acts have been passed for the purpose of meeting the specific wants of trustees and infants. By the.Trustee Relief Act (12 & 13 Vict. c. 74), trustees may in suitable cases discharge themselves from all responsibility by paying the trust moneys into the Court of Chancery, after which, the court takes upon itself the custody and distribution of the funds exactly as if a suit had been regularly commenced for the purpose (d). It may be noticed that this act does not, perhaps, extend the jurisdiction of the court, so much as provide peculiar and abnormal modes of approaching the court. The like may be said of several other modern enactments. The *Trustee Act, 1850 (13 & 14 [* 78] Vict. c. 60), provides for the appointment of new trustees of a settlement or will, in a summary and expeditious way, without instituting a suit for the general administration of the trust: and a later act (22 & 23 Vict. c. 35, s. 30) allows trustees to ask for and obtain the advice of the court upon matters relating to their trust, without the formalities of a suit.

But the legislature has done more than provide short and inexpensive modes of obtaining the benefits of the court's guidance in those matters relating to administration of property, for it has in several instances given power to the court to do more than it formerly could; it can now actually change the legal right to land or estate, if a trustee refuse to act, or be unknown, or not to be found (e).

Closely connected with these statutory provisions facilitating the discharge of their duties by trustees, are those which relate to the custody and management of infants and their property. Infants are, as we have before shown (ƒ), peculiarly the care of the court of chancery, representing the sovereign in his

(b) 27 & 28 Vict. c. 112; Guest v. Colbridge R. Co., L. R. 6 Eq. 619.

(c) See ss. 4 and 5, and Thornton v. Finch, 4 Giff. 515.

(d) Re Bloye's Trusts, 1 M. & G. 488; S. C. sub nom. Lewis v. Hilman, 3 H. L. Ca. 607. (e) 13 & 14 Vict. c. 60, ss. 34, 35, 45, 49. (f) Ante, p. 29.

character of parens patriæ. (473) The benefit derived from this care has not been without its share of legislative attention, and accordingly special and enlarged powers have been given to the court.

By the Custody of Infants' Act (2 & 3 Vict. c. 54), a mother of an infant who is in the sole custody or control of the father or his agent, or of any guardian after the father's death, may obtain an order from the court allowing her access to the infant at reasonable times; or, if the infant be within the age of seven years, the court may order the delivery of the infant into her custody until attaining that age.

Again, under an act passed in the year 1855 (18 & 19 Vict. c. 43, commonly called the Infants' Settlement Act), the court may give its sanction to a settlement by an infant of his or her property in contemplation of mar[*79] riage; and it provides that a settlement made with this sanction, shall be as valid and effectual as if the person executing the settlement were of the full age of twenty-one years. The act is limited, however, in its application to infants who, if males, are of the age of twenty years, and if females, of the age of seventeen years or upwards (g).

In the following year, 1856, another act was passed (19 & 20 Vict. c. 120), which enables the court to authorise leases or sales of any settled estates (h), which the court may in its discretion deem proper to be carried out. This act extended the powers which had been conferred by the legislature upon the court, about twenty-six years previously (by 1 Will. 4, c. 65), enabling the court to authorise leases to be granted of lands of which an infant might be seised in fee or in tail (i).

The object of these acts was to allow advantage to be taken of the discovery of mineral wealth, the improvement of the value of property by the extension of towns and other causes, to obtain which advantage it had previously been common, in the case of large estates, to apply to parliament for private acts, a proceeding through its costliness inapplicable to small holdings.

(g) Section 4.

(h) The settlement is, by section 1, confined to cases where lands are limited for persons in succession, See as to these words, Re Burdin's Will, 7 W. R. 711. The act 21 &

22 Vict. c. 77, extends the operation to reversions and to copy holds, and the act is amended by 27 & 28 Vict. c. 45.

(i) See In re Clarke, L. R. 1 Ch. 292.

(473) The jurisdiction of a court of equity over the persons and estates of infants is undoubted. See Lynch v. Rotan, 39 Ill. 14. This jurisdiction extends to the care of the person of the infant, so far as necessary for his protection and education; and as to the care of the property of the infant, for its due management and preservation, and proper application for its maintenance. Clark v. Clark, 8 Paige, 152; In re Spence, 2 Phillips' Ch. (N. C.) 247 ; 2 Story's Eq. Jur., § 1341.

As between husband and wife the former is generally entitled to the custody of the children. See Com. v. Briggs, 16 Pick. (Mass.) 203; People v. Mercein, 3 Hill, 399; Mayne v. Bredwin, 1 Halst. Ch. (N. J.) 454; Johnson v. Terry, 34 Conn. 259. See Baird v. Torrey, 6 C. E. Green (N. J.), 384; Ex parte Waldron, 18 Johns. 419; Ex parte Schumpert, 6 Rich. (S. C.) 344. But in the United States as in England, by statute or otherwise, this custody may in some cases be given to the mother. See Thomas v. Thomas, 5 C. E. Green (N. J.), 97; State v. Baird, 3 id. 194; Dumain v. Gwynne, 10 Allen (Mass.), 270; People v. Mercein, 8 Paige, 47.

In the United States the subject of the appointment and removal of guardians is generally regulated by statute. As to the removal of guardians, see West v. Forsythe, 34 Ind. 418; Perkins v. Finnegan, 105 Mass. 501. As to the jurisdiction in chancery to decree a sale of infant's real estate, see Kearney v. Vaughan, 50 Mo. 284; Rivers v. Durr, 46 Ala. 418; Faulkner v. Davis, 18 Gratt. (Va.) 651; Downin v. Sprecher, 35 Md. 474.

By another act (25 & 26 Vict. c. 108) trustees having by the terms of their trust powers to dispose of land by sale, exchange, partition, or enfranchisement, may, with the sanction of the Court of Chancery, deal specially with the minerals (k). *The legislature has ever been anxious to promote the improve[*80] ment of property, and has passed several acts with that object; to these we only refer here in order to remark, that whenever the consent or act of an owner of land, or of some interest in land, is necessary, and could not by reason of his infancy or incapacity be otherwise obtained, the court of . chancery is empowered, in a proper case, to authorise the act, or give the consent on behalf of such infant or incapacitated person. The authority or consent is obtained upon a simple application by petition (?).

So where land in settlement, or belonging to persons under some incapacity to deal with their interest, is compulsorily taken for, or injuriously affected by, some work of public importance, such as a railway, canal, or public building (m), the special authority to take or injure which is, of course, derived from the legislature, it is always entrusted to the court of chancery to see that the money paid as purchase-money or by way of compensation, is applied in accordance with the rights of parties to the land taken or affected (n).

[*81]

Charities.

*Charities are, as has already appeared, within the scope of that protection afforded by the court of chancery to persons under disability as to the management of their affairs, and suits in which the attorney-general, as representing the sovereign, is the plaintiff (usually instituted at the relation or instigation of some private individual interested in the welfare of the charity), are common. But besides the jurisdiction of the court to investigate and control the affairs of a charity upon the institution of a suit, the legislature has provided more speedy and inexpensive modes of correcting abuses. By the act, usually called sir Samuel Romilly's Act (52 Geo. 3, c. 101), an application may be made, by the attorney-general acting ex officio, or by any two or more persons interested in the charity, with the consent of the attorney-general, to the court, praying for such relief as the nature of the case may require (0).

(k) This act was passed in a great measure in consequence of the decision in Buckley v. Howell, 29 Beav. 546. It will be noticed that several of the acts mentioned in the text confer powers upon trustees and others occupying a fiduciary character, which would be given to them by the settlement or will creating the trust, if prepared by a skilled draftsman having such a knowledge of the nature of the property as might lead him to anticipate its probable requirements. This knowledge, however, is rarely possessed. The writer was acquainted with an eminent conveyancer who, in preparing his own will, purposely abstained from inserting a power to grant mining leases, because he thought it was well ascertained that there were no minerals under his land. Yet not three months elapsed after his death before a coal master offered to take a lease of some coal under the land; and the trustees were compelled to go to the court for power to grant it. In connection with this remedy by act of parliament for imperfect conveyancing, we may here call attention to the act 23 & 24 Vict. c. 145.

(1) See the Improvement of Land Act, 1864 (27 & 28 Vict. c. 114), amending and consolidating the law relating to the improvement of lands by owners of limited interest.

(m) E. g. The land forming the site of the new law courts now in contemplation, or land taken for purposes of, or affected by fortifica tion, under the Defence Act, 1860 (23 & 24 Vict. c. 160).

(n) The general act which contains the provisions under which this is done is the Lands Clauses Act, 1845 (8 Vict. c. 18).

(0) The operation of this act has been extended by judicial interpretation of a rather liberal nature to cases which would hardly appear at first sight to be within its scope; for instance, the authorising the sale of charity lands. See Re Parkes' Charity, 12 Sim. 329; Re Overseers of Eccleshall, 16 Beav. 297; Re Ashton Charity, 22 Beav. 288. The act was passed in consequence of the former act, 43 Eliz. c. 4 (commonly called the Statute of Charitable Uses) having become obsolete and fallen into disuse.

This summary jurisdiction of the court over charities has been much enlarged by the Charitable Trust Acts, 1853, 1855, and 1860 (p), which have made provision for most cases which experience has pointed out to require some more effectual or less costly remedy than previously existed. The details of these enactments would be out of place here. (474)

The last of the special powers which have been conferred by act of parliament upon the court of chancery which we need notice, is the control which, by the Attornies' and Solicitors' Act (23 & 24 Viet. c. 127, amending some previous acts), the court exercises over solicitors. * Solicitors have [* 82] always been, and are, considered as officers of the court, and therefore have always been subject to its authority in matters relating to their professional duty; (475) but by the act just mentioned, peculiar facilities are given both to the client, for the purpose of ascertaining that he has been fairly dealt with by his professional adviser, and to the solicitor for obtaining payment of his costs.

(p) 16 & 17 Vict. c. 137; 18 & 19 Vict. c. 124; 23 & 24 Vict. c. 136.

(474) As to jurisdiction in chancery over the subject of charities in the United States, see Vidal, etc., v. Girard's Executors, 2 How. 127; Wheeler v. Smith, 9 id. 55; Bascom v. Albertson, 34 N. Y. (7 Tiff.) 584; Andrew v. New York Bible and Prayer Book Society, 4 Sandf. 156; Howard v. American Peace Society, 49 Me. 288; Going v. Emery, 16 Pick. (Mass.) 107; Baptist Association v. Hart's Ex'rs, 4 Wheat. 1; McCord v. O'Chiltree, 8 Blackf. (Ind.) 15; Preachers' Aid Society v. Rich, 45 Me. 552.

"

A bequest to trustees" to be by them applied for the promotion of agricultural or horticultural improvements, or other philosophical or philanthropic purposes, at their discretion," has been held valid. Rotch v. Emerson, 105 Mass. 431. And so has a bequest for the "schooling" of the children of a school district, and for the "poor" of a county. Heuser v. Harris, 42 Ill. 425. So of a bequest for the benefit of a " Friends' meeting," it appearing that they applied their funds only to religious worship, schools, aiding the sick, etc., and purchase and repair of burying-grounds. Dexter v. Gardner, 7 Allen (Mass.), 243. See Shotwell v. Mott, 2 Sandf. Ch 46. And a devise of real and personal property for “a schoolhouse and school, to be taught by a female or females, wherein no book of instruction is to be used to teach except spelling books and the Bible," has been held valid. Tainter v. Clark, 5 Allen (Mass.), 66. But a devise in remainder to the 'Infidel Society in Philadelphia, hereafter to be incorporated for the purpose of building a hall for the free discussion of religion, politics," etc., was held invalid (Zeissweiss v. James, 63 Penn. St. 465); and a gift to a church is invalid, where the land is owned by a business corporation and has never been irrevocably dedicated to religious uses. Attorney-General v. Merrimack Manuf. Co., 14 Gray (Mass.), 586. A gift for "the poor orphans of the State of North Carolina" was held good (Miller v. Atkinson, 63 N. C. 537); and it seems, a gift for the benefit or education of "the colored people" of a particular city or State is good. Ex parte Lindley, 32 Ind. 367; Meeting St. Bap. Soc. v. Hail, 8 R. I. 234; but see Needles v. Martin, 33 Md. 609. A devise "for the propagation of the gospel in foreign lands," was held void. Carpenter v. Miller's Err, 3 W. Va. 174.

Equity will not permit members of a charitable organization to dissolve and divide the funds among themselves. Mayor v. Society, etc., 2 Brewst. (Penn.) 385; Matter of New South Meeting House, 13 Allen (Mass.), 497.

See, generally, on the subject of charities, the statutes of the particular State, in connection with the decisions of the courts made under them.

(475) Where persons standing in a confidential relation make bargains with, or receive benefits from, the persons for whom they are counsel, the transaction will be scrutinized with extreme vigilance, and regarded with the utmost jealousy; and the clearest evidence is required that there was no fraud, influence, or mistake, and that the transaction was perfectly understood by the weaker party. See Nesbit v. Lockman, 34 N. Y. (7 Tiff.) 167.

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