however, as to some few matters, peculiar to each tribunal, and in which the other cannot interfere. And, first, of those peculiar to the chancery.

ters of account, are frequent in chancery, Gwil. 1086. 7 Bro. P. C. 110. but the court of exchequer is the original and proper jurisdiction for tithes. 3 Atk. 247. 1 Mad. Ch. 105. A reference to arbitration made a rule of court at common law, does not oust chancery of its jurisdiction, but the court will deal less actively for a man who could have relieved himself at law, than for him who by his bill exhibits grounds for the peculiar interference of the court of chancery. 9 Ves. 67. A bill to set aside an award, except for corruption, &c. in the arbitrators, will not lie. 2J. & W. 249. An accountant, defendant, shall be allowed on his own oath, all sums under 40s., but then he must mention in his affidavit to whom, when, and for what paid, 1 Vern. 283. and the whole so allowed must not exceed 100. 1 Vern. 470. 2 Vero. 176. But the plaintiff shall not be allowed any thing on his oath. Id. ib. And as at law so in equity, he must not swear to his belief only, but must swear positively. 2 Atk. 410.

3. FRAUD.-Equity has so great an abhorrence of fraud, that it will set aside its own decrees if founded thereupon; and a bill lies to vacate letters patent obtained by fraud. 13 Vin. Ab. 543. pl. 9. 1 Vern. 277. All deceitful practices and artful devices, contrary to the plain rules of common honesty, are frauds at common law, and punishable there; but for some frauds or deceits there is no remedy at law, in which cases they are cognizable in equity, as one of the chief branches of its original jurisdiction. 2 Ch. Ca. 108. Finch, 161. 2 P. W. 270. 2 Vern. 189. 2 Atk. 324. 3 P. W. 130. Bridg. Ind. tit. Fraud, pl. 1. Where a person is prevented by fraud from executing a deed, equity will regard it as already done. 1 Jac. & W. 99. But where a conveyance, executed for the purpose of giving a colourable qualification to kill game, remains without being made use of in the custody of the grantor, and after his death, of his son, and the grantee afterwards obtaining possession of it, by representing that he intended by means of it to impose upon a third person, claims the estate, a court of equity will not grant relief to either party, but merely direct an ejectment to be brought at law. 2 Jac. & W. 391. This title is susceptible of the following subdivision:

1. Trustees are in no case permitted to purchase from themselves, the trust estate, 1 Vern. 465. 2 Atk. 59. 10 Ves. 3. 9 Ves. 234. 12 Ves. 372. nor their solicitor. 3 Mer. 200. Nor in bankruptcy are the commissioners (6 Ves. 617. 12 Ves. 6. 10 Ves. 381.) or assignees, (6 Ves. 627. 8 Bro. P. C. 42. Fonb. edit. 10 Ves. 381. 5 Ves. 707.) nor their solicitors. 10 Ves. 381. 12 Ves. 372. Nor committee or keeper of a lunatic, 13 Ves. 156. nor an executor, 1 Ves. & B. 170. 1 Cox, 134. nor governors of charities. 17 Ves. 500. How far the rule applies between principal and steward, vide 13 Ves. 47. 5 Ves. 485. 7 Ves. 599. and to an agent, 13 Ves. 95. 2 Sch. & L. 492. 2 Cox. 253. and in alienations between mortgagor and mortgagee. 2 Sch. & L. 673. 218. It does not apply to residuary legatees. Coop. 95. As to an auctioneer quære, 3 Wood. Lec. 448. in note. Lord Eldon's opinion (Anon. 15 Jan. 1804. M. S.) is strongly against a purchase by an auctioneer.

2dly. Attorney and Client.-Fraud in transactions between attorneys and client is guarded against most watchfully. 2 Ves. J. 201. 1 Mad. Ch. 114, 5. 116. But an attorney may purchase of his client, if he give the full amount another person would, 15 Ves. 42. ; and a client may make a voluntary gift to his attorney or agent, if unaffected by fraud, misrepresentation, or circumvention. 1 Ves. 379. 2 Ves. 259. 549.

3dly.-Heirs, Sailors, &c.-Equity will protect improvident heirs against agreements binding on their future expectancies, negotiated during some temporary embarrassment, provided such agreement manifest great inadequacy of consideration. 1 Vern. 169. 2 Vern. 27. 1 P. W. 310. 1 Bro. C. C. 1. 2 Ves. 157. It will also set aside unequal contracts obtained from sailors respecting their prize-money, Newl. Cont. 443. 1 Wils. 229. 2 Ves. 281. 516.; and the fourth sec. of 20 G. III. c. 24. declares all bargains, &c. concerning any share of a prize taken from any of his majesty's enemies, &c. void. Vid. Newl. Cont. 444.

4thly. Guardian.-Fraud between guardian and ward is also the subject of strict cognizance in the court of chancery. For the details under this head, see 1 Book. ch. XVII. and notes. 5thly. Injunctions. In a modern work the subject of injunctions is considered under the head of fraud, (see 1 Mad. Ch. 125.) but it seems to deserve a distinct consideration. An injunction is a method by which the court of chancery interferes to prevent the commission of fraud and mischief. The exercise of this authority may be obtained, ist. To stay proceedings in other courts. 2d. To restrain infringements of patent. 3d. To stay waste. 4th. To preserve copy-right. 5th. To restrain negotiation of bills, &c. or the transfer of stock. 6th. To prevent nuisances, and in most cases where the rights of others are invaded, and the remedy by action at law is too remote to prevent increasing damage. See 1 Mad. ch. 157 to 165. An injunction to stay proceedings at law does not extend to a distress for rent. 1 Jac. & W. 392. Nor has equity any jurisdiction to stop goods in transitu in any case, nor will the court restrain the sailing of a vessel for such purpose by injunction. 2 Jac. & W. 349. But an injunction to restrain defendant from receiving testator's effects, and to stay the trial of actions, may be granted under peculiar circumstances, before answer. 3 Mad. 100. sed vid. Cont. 1 Bro. 57. 6 Ves. 784. After a common injunc tion has been obtained, plaintiff may move to extend it to stay trial, upon the usual affidavits, although defendant by the rules of the court must put in his answer before trial can take place. 2 Jac. & W. 388.

6thly. Bills of Peace, which form an essential check on litigation. 1 Bro. P. C. 266. 2 Bro.

1. Upon the abolition of the court of wards, the care, which the crown was bound to take as guardian of its infant tenants, was totally extin

(2) See in general, ante, 1 Book, c. XVI. & XVII. in notes. Also note infra. p. 427.
tit. INFANTS.

P. C. 217. Bunb. 158. 1 P. W. 671. Prac. Ch. 262. 1 Stra. 404. For this purpose a perpetual injunction will be granted. See 10 Mod. 1. 1 Bro. P. C. 268. This bill cannot hold in disputes between two persons only. 2 Atk. 483. 391. 4 Bro. C. C. 157. Vin. tit. Ch. 425. pl. 35. 3 P. W. 156.

7thly. Bill of Interpleader will lie to prevent fraud or injustice, where two or more parties claim adversely to each other, from him in possession (otherwise it will not lie, 1 Mer. 405.); for in such case, it is necessary the two claimants should settle their rights before the person holding possession be required to give up to either. 2 Ves. J. S10. Mitf. Pl. 39. 1 Mad. ch. 173. And on the same principle.

8thly. Bills or Writs of Certiorari, to remove a cause from an inferior, or incompetent jurisdiction.

9thly. Bills to perpetuate testimony in danger of being lost before the right can be ascertained. 10thly. Bills to discover evidence in possession of defendant, whereof plaintiff would be otherwise wholly deprived, or of deeds, &c. in defendant's custody.

11thly. Bills of Quia Timet for the purpose of preventing a possible future injury, and thereby quieting men's minds and estates, &c. 1 Madd. Ch. 224. Newl. on Contr. 93. 493.

12thly. Bills for the delivering up of Deeds.-As where an instrument is void at common law, as being against the policy of the law, it belongs to the jurisdiction of equity to order it to be delivered up. 11 Ves. 535. In Mayor, &c. of Colchester v. Lowton, Lord Eldon says, “ My opinion has always been (differing from others) that a court of equity has jurisdiction and duty to order a void deed to be delivered up, and placed with those whose property may be affected by it, if it remains in other hands." 1 Ves. & B. 244. Where an annuity is insufficiently memorial ized, it is the jurisdiction of chancery to order it to be delivered up. 10 Ves. 218. 6 Ves. 610. 7 Ves. 3. And there can be no doubt of the jurisdiction of chancery (by bill) to order the delivery up of a specific chattel, 13 Ves. 96. and especially in the case of heir-looms. 3 Ves. & B. 16. There are other cases in which the court may be set in motion, by bill to prevent or correct fraud or injustice; but an enumeration of them will suffice. They are,

13th. Bills for apportionment or contribution between persons standing in particular relations one to another. 5 Ves. 792. 2 Freem. 97.

14th. For dower and partition.

15th. To establish moduses.

16th. Bills to marshal securities.

17th. Bills to secure property in litigation in other courts. And

18th and lastly. Bills to compel lords of manors to hold courts, or to admit copyholders and bills to reverse erroneous judgments in copyhold courts. Vide 1 Madd. Ch. 242 to 253.

4th. INFANTS. The protection and care which the court of chancery exercises over infants have already been incidentally noticed. Vide 1 Book, chs. XVI. XVII. and notes.

Wards of Court. To make a child a ward of court, it is sufficient to file a bill; and it is a contempt to marry a ward of court, though the infant's father be living. Anbl. 301. The court of chancery, representing the king as parens patriæ, has jurisdiction to control the right of the father to the possession of his infant; but the court of K. B. has not any portion of that delegated authority. The court of chancery will restrain the father from removing his child, or doing any act towards removing it out of the jurisdiction. So will the court refuse the possession of the child to its mother, if she has withdrawn herself from her husband. 10 Ves. 52. Co. Lit. 89 (a), n. 70. 2 Fonb. Tr. Eq. 224. n. (a). 2 Bro. C. C. 499. 1 P. W. 705. 4 Bro. C. C. 101. 2 P. W. 102. The court retains its jurisdiction over the property of a ward of court after 21, if it remains in court; and if the ward marries, will order a proper settlement to be made, or reform an improper one, unless the ward consents to the settlement either in court or under a commission. 2 Sim. & Stu. 123. n. (a). In case the husband assign the property of the wife, who is a ward of court, it shall not prevail, but the court will direct even the whole of the property in question to be settled on the wife and her children, and the assignee will not be entitled even to the arrear of interest accrued since the marriage, 3 Ves. 506. Affidavit of a bribe to a police officer to assist in obtaining possession of a ward of court, ordered to be laid before the attorney-general. 3 V. & B. 172. Marriage of ward of court under gross circumstances, is punishable beyond commitment, by indictment as a conspiracy. "And," says Lord Eldon," it should be known, that by indictment directed by this court, persons engaging in a conspiracy for such a species of robbery will be liable to suffer a punishment (the pillory and imprisonment was inflicted in one case, see 7 Ves. 419. but that punishment is now abolished), which to a gentleman will be more dreadful than transportation or death." Id. ib. A general act of pardon, though with an exception of contempts (as 7 G. I. c. 26. s. 23.) extends to pardon contempts in marrying infant wards. 1 P. W. 697.

5th. SPECIFIC PERFORMANCE OF AGREEMENTS.-The jurisdiction of the courts of equity, in matters of this kind, though certainly as ancient as the reign of Edward IV. did not obtain an unresisting and uniform acquiescence on the part of the public till many years afterwards. See Roll. Rep. 354. 2 ib. 443. Latch. 172. All doubts, however, upon this question have long ago

[427] guished in every feodal view; but resulted to the king in his court of chancery, together with the general protection (c) of all other in

c F. N. B, 27,

ceased, and it has become one of the most fruitful sources of business to those courts. They af ford this assistance principally in those cases where courts of law are incapable of giving to the party the remedy which he seeks, and to which, in conscience, he is entitled.

Realty. Thus equity enforces agreements for the purchase of lands, or things which relate to realties, but not (generally) those which relate to personal chattels, as the sale of stock, corn, hops, &c. in such cases the remedy is at law. 3 Atk. 383. Newl. Cont. 87. Equity will relieve against a forfeiture incurred by the non-performance of a covenant in a lease to pay the rent at or within the time appointed; for the clause of re-entry in such a case, is only to secure the payment of rent, and when the rent is paid the end is obtained. 10 Ves. 69. vid. 1 Vern. 449. But the stat. 4 Geo. II. c. 28. has circumscribed the lessee's right to relief, and has imposed terms on his obtaining it. For that statute enacts, that if the lessee in case of ejectment brought by the lessor in consequence of the rent being in arrear, suffer judgment to be had, and execution thereon, without paying the rent and arrears, together with full costs, and without filing a bill for relief in equity within six calendar months after such execution, the lessee shall be barred from all relief in equity. The statute further enacts, that if the lessee shall within the time aforesaid file a bill for relief in equity, he shall not have an injunction against the proceedings at law on such ejectment, unless he shall within forty days after answer filed by the lessor, bring into court such sum of money as the lessor shall in his answer swear to be due and in arrear, together with the costs taxed in the said suit. The statute at the same time provides, that if the tenant shall at any time before the trial in such ejectment, pay or tender to the lessor, or pay into court where the same cause is depending, all the rent and arrears, together with the costs, all further proceedings on the said ejectment shall cease; and that if such lessee should upon such bill filed as aforesaid be relieved in equity, he shall enjoy the demised lands according to the lease, without any new lease to be made to him. Newl. Cont. 316, 17. Whether a court of equity will relieve against a forfeiture by a breach of other covenants in a lease, depends upon the question whether it is a case in which the court can afford compensation. Id. 317, 18. In general the court will not relieve a tenant against a forfeiture for not repairing. 16 Ves. 402. 2 Price, 200.; and though a court of equity has, after a first default, relieved against a forfeiture by not insuring, 3 Campb. 138. note (a). 19 Ves. 143. yet the general rule seems otherwise. 2 Meriv. 459.

That which is agreed to be done is in equity considered as already done, 2 P. W. 222.; and therefore when a husband covenants on his marriage to make a settlement charged upon his lands, which he is afterwards prevented from completing by sudden death, the heir shall make satisfaction of the settlement out of the estate. Ib. 233.

Personalty. In agreements, with penalties for the breach of them, it is necessary to distinguish the cases of a penalty intended as a security, for a collateral object, from those where the contract itself has assessed the damages which the party is to pay, upon his doing or omitting to do the particular act. In these latter cases, equity will not interfere either to prevent or to enforce the act in question, or to restrain the recovery of damages after they have become due. But in the former, where it plainly appears that the specific performance of that act was the primary ob ject of the agreement, and the penalty intended merely to operate as a collateral security for its being done, though at law the party might make his election, either to do the particular act or to pay the penalty, a court of equity will not permit him to exercise such right, but will compel him to perform the object of the agreement. Newl. Cont. cap. 17. Thus, as the principle whereon a specific performance of agreement relating to personals is refused, is, that there is as complete a remedy to be obtained at law, therefore, where a party sues merely on a memorandum of agreement (a mere memorandum not being regarded as valid at law), a court of equity will give relief, for equity suffers not a right to be without a remedy. 3 Atk. 382. 385. But it is only where the legal remedy is inadequate or defective, that courts of equity interfere. 8 Ves. 163. Equity will not enforce an agreement for the transfer of stock, 10 Ves. 161.; but it has been held that a bill will lie for performance of agreement for purchase of government stock, where it prays for the delivery of the certificates which give the legal title to stock. 1 Sim. & Stu. 590. And it seems the court will entertain a suit for the specific performance of a contract for the purchase of a debt. 5 Price, 325. So to sell the goodwill of a trade, and the exclusive use of a secret in dying, 1 Sim. & Stu. 74. but not without great caution. See 1 P. Wis. 181. 14 Ves. 468. 17 Ves. 385. 2 Madd. 198. 5 T. K. 118. Agreements to indemnify will be enforced on the principle of quia timet bills. 1 Vern. 189. 1 Bro. C. C. 52. An agreement to divide what shall come to either party by will of another, is enforced. 2 P. W. 181. So to leave property by will, if for good consideration. 1 Vern. 48. So to make mutual wills, 5 Ves. 412. 416. 402. And where the testator omits to charge a legacy on his real estate, in consequence of the devisee promising to pay it, he must perform such promise. 2 Vern. 506. And agreements are enforced sometimes to avoid circuity. 1 Eq. Ab. 18. 221. 2 P. W. 228. A specific performance of an agreement to enter into partnership, will, under circumstances, be decreed. 3 Atk. 385. 2 Ves. Sen. 629. 16 Ves. 49. If, however, by the terms of the agreement the partnership would have no fixed duration or benefit, as, being determinable upon notice, equity will not interfere. 9 Ves. 357. 1 Brod. & Bing. 318. 1 Marsh. 610. 2 Stark. R. 108. Nor will equity decree a specific performance of an agreement to refer to arbitration. 19 Ves. 431. 1 Wils. Ch. R. 31. 2 Bos. &

fants in the kingdom. When therefore a fatherless child has no other guardian, the court of chancery has a right to appoint one: 3 and from all

(3) As to guardian and ward in general, see ante, 1 Book, c. XVII. in note. Also note, infra, tit. INFANTS.

P. 135. So agreements upon separation between husband and wife are not regarded in chancery, unless a trustee intervenes; such cases, otherwise, belong to the ecclesiastical court. 2 Vent. 217. 2 East. 283.

6th. TRUSTS.-Trusts may be created of real or personal estate, and are either, 1st, Express; or 2d, Implied. Under the head of implied trusts may be included all resulting trusts, and all such trusts as are not express. Express trusts are created by deed or will. Implied trusts arise, in general, by construction of law, upon the acts or situation of parties. 1 Mad. Cha. 446.

Lunatics.-The custody of the persons and estates of lunatics was a power not originally in the crown, but was given to it by statute, for the benefit of the subject. 1 Ridgw. P. Č. 224. et vid. 2 Inst. 14. And now, by the statute de prerogativa regis, 17 Edw. II. c. 9 & 10., the king shall have the real estates of idiots to his own use, and he shall provide for the safe keeping of the real estates of lunatics, so that they shall have a competent maintenance, and the residue is to be kept for their use. 1 Ridg. P. C. 519. 535. A liberal application of the property of a lunatic is made to secure every comfort bis situation will admit, 6 Ves. 8. without regard to expectants on estate. 1 Ves. J. 297. The power of the chancellor extends to making grants from time to time of the lunatic's estate, and as this power is derived under the sign manual, in virtue of the prerogative of the crown, the chancellor, who is usually invested with it, is responsible to the crown alone for the right exercise of it, per Ld. Hardw. 3 Atk. 635. It is said, that since the Revolution the king has always granted the surplus profits of the estate of an idiot to some of his family. Ridgw. P. C. 519. App. note (1). No grant of a lunatic's estate can be made otherwise than during pleasure. 2 Sch. & Lef. 438. The lord chancellor can make an order in a lunatic's affairs after his death. Ambl. 706. So where there is a reference to the master, in a case of lunacy, he shall make his report, though the lunatic be dead. 3 Bro. C. C. 238. Neither is the control of the court over the committee of the lunatic, determined by the death of the lunatic; therefore, on the application of the heir after the lunatic's death, the court will order the committee to give up possession, and not put the heir to his ejectment, supposing his title as heir is admitted. 2 Scho. & Lef. 439.

Commission of Lunacy.-Every person who has attained the usual age of discretion is presumed in law to be of sound mind, until the contrary is proved, 1 H. P. C. 33. ; and, in order to come at this proof, the practice formerly was on petition to the chancellor, suggesting lunacy in the particular person of competent age, verified by affidavit of facts, to issue a writ to the sheriff or escheator of the county where his residence was, to try by a jury on personal examination of party, whether that suggestion was true or not: but now the practice is to try these matters under a special commission of inquiry. 1 Ridgw. P. C. 521. App. If the commissioners or jury, upon a commission of inquiry, misbehave themselves, their proceedings may be set aside by the chancellor. Id. 541. A commission of lunacy is the subject of discretion, regulated solely by the benefit of the lunatic, with reference to the care of his person and property; and is therefore not of course, upon the mere fact of lunacy being proved. 1 Ves. & B. 57. The inquisition is genrerally held near the lunatic's residence, and notice is given to him. 7 Ves. 261. If it is to ascer tain when the lunacy commenced, it is then held near his place of residence prior to his lunacy. 1 Swa. 4. A person found a lunatic, by a competent jurisdiction abroad, may be considered a lunatic here. 2 Ves. J. 588. The 2 Edw. VI. c. 8. s. 6. provides," that if any person be untruly found lunatic, &c. that every person or persons grieved, or to be grieved, by such an office or in quisition, shall and may have his or their traverse to the saine immediately or after, at his or their pleasure, and proceed to trial therein, and have like remedy and advantage as in other cases of traverse upon untrue inquisitions or offices founden." It has been doubted, however, whether the party grieved by the inquisition must not apply to chancery, notwith. standing this provision of the stat. 1 Fonbl. 65. Certain it is, that he must apply, in or der to suspend the grant of the custody of the person, which regularly is immediate upon the return of the inquest, though, according to 10 H. VI. c. 4. the custody of the land ought not to be granted until a month after, in order that the parties affected by it may have time to traverse it. 3 Atk. 5. 311. Fonb. Eq. b. 1. c. 2. s. 2. n. (q). So upon petition, praying reference to master, as to state of plaintiff and her fortune, and directions for her maintenance, the property being too small to bear a commission of lunacy, an order was made upon affidavit, without a reference, for payment of the dividends for the two ensuing quarters. 4 Ves. 795. vid. also 3 Ves. & B. 127. It is said, in Prac. Reg. 232., that if the bill, in nature of an information, prays relief against an act done during lunacy, the lunatic must not be made a party, for that were to stultify himself; yet, it seems, a lunatic may be a party to a bill, by his committee, to set aside acts during his lunacy. 1 Eq Ca. Ab. 279. Dick. 742. Fonb. Eq. 61. c. 2. s. 1. note (n). The 17 G. ÏI. c. 5, 8. 20. which empowers justices of peace to take care of lunatics, extends to vagrants only, and not to persons of rank. 2 Atk. 52.

Lunatic's Committee.-The court will not appoint a master in chancery to an office in respect of which he will be liable to account, as committee of lunatic's estate. And the court refused to appoint a person, who had agreed to give part of the profits to another. 6 Ves. 427, And see further, a valuable note on this subject, 1 Fonbl. on Eq. ch. 2. s. 1. page 57. note (0),

proceedings relative thereto, an appeal lies to the house of lords. The court of exchequer can only appoint a guardian ad litem, to manage the

In case no one will act as committee, a receiver will be appointed to the estate. 1 Jac. & W. 639. The committee is not necessarily to be removed in consequence of his bankruptcy. 1 Swan. 531. In managing the estate of the lunatic, this court may apply personalty in payment of debts to any extent, and is to take every advantage that tends fairly towards improvement, so that nothing extraordinary is attempted, as disposing of interests, purchasing estates, engaging in adventures, &c. 2 Ves. J. 73. The lord chancellor cannot, by order in lunacy, make an absolute title to the lunatic's leasehold estate. 8 Ves. 79. Nor will he even for creditors make an order, the effect of which must be to put the lunatic into a state of absolute want. Id. ib.

Charities. The general controlling power of the court over charities, does not extend to a charity regulated by governors under a charter, unless they have also the management of the revenues, and abuse their trust; which will not be presumed, but must be apparent, and made out by evidence. 2 Ves. J. 42. The internal management of a charity is the exclusive subject of visitorial jurisdiction: but under a trust as to the revenue, abuse by misapplication is controlled in chancery. 2 Ves. & B. 134. Though the governors of a charity may not be guilty of corruption, yet, where they are extremely negligent, they shall pay costs, and the person taking advantage of their neglect, to the prejudice of the charity, shall not be benefited by his bargain. 2 P. Wms. 84. If a gift be made to trustees to support a schoolmaster, it is in their discretion to found a grammar-school, or a school for teaching other branches of learning, subject to the control of the court of chancery. 2 J. & W. 370, 1. Where summary powers are given to the lord chancellor by a private statute to regulate a charity, he cannot vary the foundation or general constitution of the trust. 2 Bro. C. C. 662. A charity is not barred by the statute of limitations, yet an adverse enjoyment for a long time is a very material consideration in construing an instrument under which it claims. 2 Jac. & W. 321. And that statute seems a good rule how far back to carry the account. 2 Eq. Ab. 12. pl. 21. A bequest for the maintenance of an assembly for advancing the Jewish religion is illegal. 2 Swan. 487. But a bequest for the support of poor Jews is valid. Id. 490. Chancery will not interfere with the education of the children of Jews farther than is required by statute. Id. 538. A protestant dissenting chapel may be the subject of an information by the attorney-general, as a charitable institution. 15 Ves. 85. A bequest to poor relations is sustained as a charity. 7 Ves. 423. Presumptions are to be made in favour of charity, 2 Ves. J. 584. and relief is given where it would not against defendants in or dinary cases. 11 Ves. 367. The court has no jurisdiction under the 52 Geo. III. c. 101. to direct upon petition an account of the assets of a person who had received the rents of a charity, 2 Sim. & Stu. 66. Where money was bequeathed to the minister and church of a parish in Scotland, for the benefit of a charity or school to be established there, the lord chancellor directed the money to be laid out in the name of the accountant- general, and the dividends to be paid to the minister and church officers for the time being, to be applied for the purposes of the charity, and reversed an order establishing a scheme for the charity, this court not taking into its hands the administration of a charity in Scotland. 1 Wils. Ch. Rep. 465. The attorney-general is a necessary party to all suits for charitable funds, except where a legacy is given to the officer of an established institution as part of its general funds. 1 Sim. & Stu. 40. Or where trustees are appointed by the donor; but where a bill is brought to establish a charity, it must ex necessitate rei be in the attorney-general's name. 4 Vin. Ab. 500. pl. 11. Persons presenting a petition under an act empowering "any person or persons whatsoever," to petition against the trustees of the charity, must be interested in the fund, 2 Swan. 525, 6. and it must be a direct interest, Id. 518. Any person, though most remote in contemplation of the charity, may be relator. 2 Atk. 328. It has been the constant practice, abstracted from the stat. of Eliz. and antecedent to it, to file informations in the attorney-general's name, for the establishment of charities; for the king, as pater patriæ, has an original right. 2 P. W. 118. The 52 G. III. c. 101. s. 5. provides, that if a charity, &c. be not duly memorialized, &c. according to the provisions of the act, it shall and may be lawful for any two persons or more, interested in such charity or charitable donation to present a petition to the lord chancellor, &c. complaining thereof, and they (the chancellor, &c.) are required to hear such petition in a summary way, and upon affidavit or such other evidence as shall be produced upon such hearing, to determine the same, and to make such order therein, and with respect to the costs of such application and proceedings, as to him, &c. shall seem fit, and which order shall be final and conclusive. Where an information and a petition under the above act, 52 Geo. III., and proceeding together and include the same, or part of same objects, the court will refer it to the attorney-general to consider which should proceed. 1 J. & W. 303. In all cases, except those of charity, the decree must be founded on the prayer of the bill; but in an information to regulate a charity, the court will give proper directions without regard to the impropriety in the prayer. 1 Atk. 355. 1 Ves. 418. 11 Ves. 247. And will go a vast way in relieving against want of form and against mistakes. 11 Ves. 372. For it is a rule, that an information for a charity shall not be dismissed; but there must be a decrce to settle the right and establish the charity, according to the donor's intent. That rule however holds only in cases of private charities, and not where they are founded by the crown. 1 Ves. 43. 72. 2 Ves. 426. But in 1 Ves. Jun. 246. lord Thurlow donbted if it was the practice of the court to settle the right where the prayer of the information did not go to it. Bridg. Index. tit. Charitable Uses, pl. 194.