declared that, in the events which had happened, the right to the fines reserved, and to be reserved upon the leases of the estates comprised in the above indentures, was in his Majesty by sign manual; and the further directions as to the application of the funds was reserved until his Majesty, by sign manual, should signify his pleasure with respect to the application of the same (s). The right of the crown to appoint by sign manual will not arise where the charitable purpose to which the fund is devoted has not wholly failed; and although the fund be not immediately applicable to the charitable purpose expressed by the testator, the jurisdiction of the court will remain as to the administration of the fund, either for retaining the fund until it shall become applicable to the expressed object, or for applying it to purposes approximating as nearly as may be to that expressed object (t). Thus in The Attorney General v. The Bishop of Chester (u), a legacy given towards establishing a bishop in America was held not to be void, though no bishop had been appointed; and the money was retained in court till it should be seen whether any such appointment would take place. Ultimately the legacy became applicable to the purpose expressed by the testator, upon the appointment of a Bishop of Canada, and it was applied accordingly. We have already seen that where property is given to superstitious uses and the gift indicates a charitable purpose, that although the uses are void, the crown has power, by sign manual, to appoint the fund to some other charitable purpose (v); so in the case of a devise of lands to a superstitious use, it was held that there was no resulting trust for the heir-at-law, but that the king was bound to apply it to a proper use (w). The Court of Chancery has long made a distinction between (s) Attorney General v. Marchioness of Londonderry, Reg. lib. A. 1825, fol. 1553. (t) Attorney General v. The Ironmongers' Company, 2 Mylne & Keen, 578. T (u) 1 Br. C. C. 444. (v) Ante, pp. 99, 100. (w) Rex v. Portington, 1 Salk. 162; S. C. 3 Id. 334; 12 Mod. 31. See Attorney General v. Whorwood, 1 Ves. sen. 537. In Croft v. Evetts, superstitious uses (x) and mistaken charitable uses. By mistaken, are meant such as are repugnant to that sound constitutional policy, which controls the interest, wills, and wishes of individuals when they clash with the interest and safety of the whole community. Where property is given to mistaken charitable uses, the Court of Chancery distinguishes between the charity and the use; and seeing a charitable bequest in the intention of the testator, they execute the intention by varying the use, and applying the property to some charitable purpose, agreeable to law, as the king, who is the curator of all charities, and the constitutional trustee for the performance of them, pleases to direct and appoint (y). In every other case, if the testator's intention cannot take effect in specie, the heir-at-law takes the estates. Wilmot, C. J., said, "the right of the heir seems to arise as naturally in this case as in any other; but, instead of favouring him as in all other cases, the testator is made to disinherit him for a charity he never thought of-perhaps for a charity repugnant to the testator's intention, and which directly opposes and encounters the charity he meant to establish. The ground of this doctrine is said to be this: the donation was considered as proceeding from a general principle of piety in the testator. Charity was an expiation of sin, and to be rewarded in another state; and, therefore, if political reasons negatived the particular charity given, the Court of Chancery thought the merits of the charity ought not to be lost to the testator nor to the public, and that they were carrying on his general pious intention; and they proceeded upon a presumption that the principle which produced one charity would have been equally active in producing another, in case the testator had been told the particular charity he meditated could not take place. The Court thought one kind of charity would embalm Moore, 784, Lord Chancellor Ellesmere, with the advice of the other judges, set aside a conveyance to superstitious uses in favour of the heir, to whom the trustees were directed to convey. So, in an early case already mentioned (ante, pp. 98, (x) See ante, p. 88. See his memory as well as another, and being equally meritorious, would entitle him to the same reward (z). Thus where a legacy is given to a superstitious purpose or a mistaken religious purpose, the court will not apply it to that, but will act upon the supposed intention for charity, and give it to a real religious purpose. A gift of 107. a-year for a weekly sermon upon Saturday, at St. Albans, the preacher to be chosen by the majority of the best inhabitants, was thought a mistaken and wild charity; and the 107. a-year was directed to be paid to a catechist (to be approved by the bishop of the diocese), to preach weekly at St. Albans on a Saturday (a). An an nuity was devised to charitable uses intentionally, but the uses expressed were void; and therefore the court decreed it to be paid to such person as should be approved of by the Bishop of London, for expounding and catechising every Saturday, and the arrears being considerable, were ordered to be applied for the increase of the stipend. And a case was cited, where a pension given to silenced ministers was decreed, by the Barons of the Exchequer, to poor conforming ministers (b). (2) Wilmot's Notes, 32, 33. The civil law contains a hint for varying the destination of a donation to the public. Digest xxxiii. Tit. 2. De usu et usufr. Legatorum. De Legato Civitati ad certum usum. Modestini. Lib. IX. Responsorum. (a) Attorney General v. Combe, 2 Ch. Cas. 18. In this case it was 16. said that a gift to maintain a superstitious institution so long as the law would allow, was turned to a good use when the superstitious use was abrogated. (b) Anon. 2 Freem. 40. See Attorney General v. Guise, 2 Vern. 266. SECTION II. Of the Commission of Charitable Uses. 1. Of the Inquiry by Commission. 2. Who may be Commissioners, p. 280. 3. Of the Inquisition, p. 281. 4. Of the Decree of the Commissioners, p. 283. 1. Of the inquiry by commission of charitable uses.] In the reign of Queen Elizabeth an act was passed which is commonly called the statute of charitable uses (c), said by Lord Coke to be a profitable law, which had produced very good effects in many cases (d), which authorises the issuing of certain commissions to inquire in respect of what are called charitable uses and trusts. The Court of Chancery was to issue the commission to certain persons, of whom one was to be the bishop of the diocese, with other persons selected for the purpose: and they were authorised to proceed by summoning a jury of the county where the property in question was situated, for the purpose of inquiring whether there had been any abuse, or misapplication, or mistaken application of the funds belonging to charities (e). (c) See note, p. 2, 3, 4. (d) 2 Inst. 727. (e) The statute 43 Eliz. c. 4, after reciting that lands, rents, annuities, hereditaments, goods, chattels, money, and stocks of money had been given and appointed for various charitable purposes therein enumerated (see ante, p. 60), which had not been employed according to the charitable intent of the givers and founders thereof, by reason of frauds, breaches of trust, and negligence, in those that should pay, deliver, and employ the same, enabled the lord chancellor or keeper of the great seal of England for the time being, and the chancellor of the duchy of Lancaster for the time being, for lands in the county palatine of Lancaster, to award commissions into all or any parts of this realm respectively, according to their This statute did not create a new law with respect to cha ritable uses, but only a new and ancillary jurisdiction by commission. The proceedings under it were made subject to appeal to the lord chancellor, who might reverse or affirm what the commissioners had done, or make such order as he might think fit for reserving the controlling jurisdiction of the Court of Chancery as it existed before the passing of that statute; and there can be no doubt that, by information by the attorney general, the same thing might have been done (g). several jurisdictions as aforesaid, to the bishop of every several diocese and his chancellor and other persons, authorising them, or any four or more of them, to inquire by a jury of the county and by other means, of all gifts, limitations, assignments, and appointments aforesaid, and of the abuses, breaches of trust, negligences, misemployments, not employing, concealing, defrauding, misconverting or misgovernment of any lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money, or stocks of money theretofore or thereafter to be given, limited, appointed, or assigned for any of the charitable and godly uses before rehearsed (see ante, p. 60); and, after the commissioners or any four of them, upon calling the parties interested, should make inquiry by the oaths of twelve or more men of the county, who might be challenged by the parties interested, and upon such inquiry set down such orders, judgments, and decrees, in order that the charitable gifts might be duly and faithfully employed for the charitable purposes for which they were given by the donors thereof; which orders, judgments, and decrees, not being contrary or repugnant to the orders, statutes, or decrees of the donors or founders, should stand firm and good, according to the tenor thereof, and be executed accordingly until the same should be undone or altered by the lord chancellor or lord keeper of the great seal, or the chancellor of the county palatine of Lancaster respectively, within their several jurisdictions, upon complaint by any party grieved, to be made to them. (g) Attorney General v. Mayor, &c. of Dublin, 1 Bligh, N. S. 347. The jurisdiction of the Court of Chancery, by information in the attorney general's name for the establishment of charities, appears to have existed as part of the original jurisdiction of that court prior to and independently of the statute 43 Eliz. c. 4; Attorney General v. Newman, 1 Chan. Cas. 157. See P. Wms. 119; Attorney General v. Brereton, 2 Ves. sen. 426; Attorney General v. Middleton, Id. 328; Wilmot's Notes, 24. Although Lord Rosslyn is reported to have said that it did not appear that the Court of Chancery, before the stat. 43 Eliz. c. 4, had cognizance upon informations for the establishment of charities. Prior to the time of Lord Ellesmere, as far as the tradition in times |