trustees of charities fail in the performance of their duties, either by death or by a disability or refusal to act, the constitution has provided a trustee in the person of the king (b).

Sir W. Blackstone (c) observes that "the king, as parens patriæ, has the general superintendence of all charities, which he now exercises by the keeper of his conscience, the chancellor; and, therefore, whenever it is necessary, the attorneygeneral, at the relation of some informant who is actually called the relator, files ex officio an information in the Court of Chancery, to have the charity properly established."

This proposition is too general: for, though it be true that where a charity is established and there is no charter to regulate it, (as there must be somewhere a power to regulate,) the king has, in that case, a general jurisdiction, yet if there be a charter, with proper powers, the charity must be regulated in the manner prescribed by the charter, and there is no ground for the controlling interposition of the Court of Chancery (d).

The principal, originally almost the whole, jurisdiction of a court of equity, was the administration of trusts-by protecting, not only the visible owner, who alone can proceed at law, but the individual equitably, though not legally, entitled. From that principle arose the practice of administering the trusts of a public charity. Persons possessed of funds appropriated to such purposes are within the general rule; but no one being entitled by an immediate and peculiar interest to prefer a complaint for compelling the performance of the obligations of trustees, and to enforce their responsibility, it is the duty of the crown, as parens patriæ, to protect property devoted to charitable uses, and that duty

(b) Wilmot's Notes, 24. See 2 P. Wms. 119; Attorney General v. Newman, 1 Ch. Cas. 157; 2 Ves. sen. 426.

(c) 3 Bl. Comm. 427.

(d) Attorney General v. Middleton, 2 Ves. sen. 328; Attorney General v. Smart, 1 Ves. sen. 72. See 2 Fonbl. Eq. 208, n.

is executed by the officer who represents the crown for all forensic purposes; and on that foundation rests the right of the attorney-general in such cases, to obtain by information the interposition of a court of equity (e).

Lord Redesdale said, " that the ground stated in all the books is this, that the king is to be considered as the parens patriæ; that he is the protector of every part of his subjects; and that, therefore, it is the duty of his officer, the attorneygeneral, to see that justice is done to every part of those subjects. It would be highly improper for the attorneygeneral, assisting in that character, to press harder upon one party than upon another. another. It is his duty to see that justice is done; and it was for that purpose that informations in the name of the attorney-general were permitted, for the purpose of carrying into execution charitable dispositions, or for providing for the due distribution of charitable funds. Relators were required, because the crown paid no costs. The attorneygeneral, prosecuting as the officer of the crown, could not be liable for costs; and a complaint might be made highly oppressive to them, unless there were some person responsible for the costs that might be incurred in consequence of that proceeding" (f).

2. Of the disposition of charitable funds by the king's sign manual.] It was established by three early cases, that where property was not vested in trustees, and the gift was to charity generally, not to be ascertained by the act of individuals referred to, the charity was to be disposed of, on a bill to be preferred in the attorney-general's name, not by a scheme before the master, but by the king, the disposer of such charities, in his character of parens patriæ (g).

In Moggridge v. Thackwell (h) Lord Eldon observed, "it

(e) Wellbeloved v. Jones, 1 Sim. & Stu. 43. See 1 Swanst. 290, 291. (f) Corporation of Ludlow v. Greenhouse, 1 Bligh, N. S. 48.

(g) Attorney General v. Siderfin,

1 Vern. 224; Attorney General v. Matthews, 2 Lev. 167; Clifford v. Francis, Freem. 330. See 7 Ves. 75; 2 Cox, 56.

(h) 7 Ves. 83.

being established, that where money is given to charity generally and indefinitely, without trustees or objects selected, the king, as parens patriæ, is the constitutional trustee, it is very difficult to raise a solid distinction between an original gift absolutely indefinite, and without qualification, and a case in which, by matter ex post facto, the gift stands before the court in consequence of that accident as if it had been originally given indefinitely, without any means for carrying it into execution prescribed."

The result, however, of an elaborate examination of all the authorities made by that learned judge was, that (i) the general principle, thought most reconcilable to the cases is, that where there is a general indefinite purpose of charity, not fixing itself upon any object, the disposition is in the king by sign manual; but, where the execution is to be by a trustee, with general or some objects pointed out, there the court will take the administration of the trust. And his lordship, in a subsequent case, said, that "the distinction which he adopted in the case last cited was, that where the bequest is to trustees for charitable purposes, the disposition must be the subject of a scheme before the master; but where the object is charity without a trust interposed, it must be by sign manual" (k).

In the Attorney General v. Siderfin (1), the testator, in certain events which happened, gave 1000l. to such charitable use as he had under his hand formerly directed. The person entitled to the estate, subject to the charge, took possession without paying it. Christ's Hospital having discovered the charity to the crown, on their petition, the king, by sign manual, directed the 1000l. to be paid to the relators, to be employed for the use of the mathematical boys of that foun

(i) 7 Ves. 86.

(k) Paice v. Archbishop of Canterbury, 14 Ves. 372. See Ommanney v. Butcher, 1 Turn. & Russ. 270. The distinction taken by Lord Eldon in Moggridge v. Thackwell, has been

acted upon in the recent cases of Simon v. Barber, 5 Russ. 112, and Hayter v. Trego, Ibid. 113. See post.

(1) 1 Vern. 224; S. C. 2 Freem. 330; Reg. lib. (A), 1683, fol. 340; 7 Ves. 43 n., 70, 71; 1 Mer. 59 n.

dation. On an information by the governors of the hospital to recover that sum, the defendant stated by his answer that he had diligently searched for, but could not find, any instrument in writing whereby the testator had directed the particular uses, persons, or places to which the 10007. should be paid, and that if none appeared, the devise of the 10007. was void. But the court declared that the 1000l. was well given, though there was no direction how the same should be applied, and there being no direction found for the employing thereof, it ought to be employed as his majesty had directed; and it was accordingly decreed to be paid, and ordered to be laid out in the purchase of lands, the rents whereof were to be employed for the use of the mathematical boys of Christ's Hospital for ever; and on payment of the sum, the decree directed that the defendant and his estate should be discharged and indemnified, in case any direction of the testator should thereafter be found, how the 10007. should be paid.

In case of an indefinite charity, as to the poor in general, the application is to be settled by the king, on an information in chancery in the attorney-general's name. Where a man gave the surplus of his estate, after payment of his debts, to his executors, to be disposed of to pious uses, on a question whether the commissioners had power over the fund, under the statute 43 Eliz. c. 4, the court took a distinction between a gift to charity, without expressing what charity, in which case the king is the disposer of the charity, and a bill ought to be preferred in the attorney-general's name for that purpose; and a gift to charity, where no particular purpose is expressed, in which case the commissioners had power (m).

Where a testator by his will gave 500l., to be disposed of in charity, according to the discretion of Dr. B., who died before he received the money, having by his will directed his brother to dispose of it according to his discretion. It was held that the crown had the disposal of the money; and the (m) Clifford v. Francis, Freem. 2 Lev. 167.

330; Attorney General v. Matthews,

parties having obtained his majesty's sign manual, the court directed the money to be applied accordingly (n).

In the Attorney General v. Herrick (o), where a testator, before the statute 9 Geo. II. c. 36, devised estates to be sold to pay debts and legacies, and the surplus produce, and the remainder of the estates to be applied to charitable and pious uses generally, it appears by the register's book that all directions touching the application of the residue of the personal estate, and the produce of the sale of the real estate, and the rents and profits, were reserved until his majesty's pleasure should be known (p).

Where a testator, having given lands to certain charities, gave the surplus of his estate to the poor indefinitely, the word poor, in common construction, extending to all the poor in England, it was held that the disposition of the surplus charity belonged to the king (q).

Where the persons to whom power is given of selecting charitable objects have died without making any appointment, the power will devolve upon the crown by sign manual. Thus, where by indentures of 17th and 18th of December, 1685, estates were conveyed to trustees and their heirs upon trust, to receive certain sums therein mentioned for charitable purposes, and after all such sums had been received, the further appointment of the benefit of such fines as should be received, by renewing leases of the property, was reserved according to the direction and order of the donors and the survivor of them, during their lives and the life of the survivor, to such other workhouses, schools, or such other godly and charitable uses as they or the survivor of them should appoint; and it appeared that no further appointment was made by the donors or either of them, who had been long dead, and the sums directed received. It was

(n) Attorney General v. Berryman, Dick. 168.

(0) Ambl. 712.

(p) Reg. lib. A. 1772, fol. 239.

(q) Attorney General v. Peacock, Finch, 245; Attorney General v. Siderfin, 1 Vern. 225; Attorney General v. Matthews, 2 Lev. 167.