tendency to put, a large extent of land in mortmain, and so take it out of circulation, the evils of which were, in our own country before the Reformation, and are in other countries at the present day, matters of notoriety.

The mode in which it is proposed that land should be conveyed to charitable purposes is similar to that in sect. I of stat. 9 Geo. 2, c. 36, except that instead of inrolling the deed in Chancery "a copy of it is to be delivered to the Charity Commissioners within six calendar months next after execution thereof;" and although the deed is to contain no reservation for the life of the grantor, it omits what is contained in the statute of Geo. 2, "or of any person or persons claiming under him." (Sect. 7).

It will be observed, that one important principle running all through the bill is, that the greatest publicity should be given to all trusts for charities; it therefore substitutes for inrolment in Chancery a very defective means of insuring publicity-the transmission of a copy of the inrolment to the Charity Commis

sioners.

Another innovation is, that land held by way of mortgage may be given to the person to whom the mortgage money is given. (Sect. 8*). Except in the above-mentioned cases, no land, or any interest therein, is to be given on charitable trusts. (Sect. 9).

Stock, money due upon mortgage, and all forms of personal estate connected with or savouring of realty, (except leasehold estates and chattel interests in land), may be given by any person during his lifetime to any charitable purpose, on the following conditions::

The transfer, or other legal solemnity, must be complete three calendar months before the death of the donor, and notice of the amount transferred, and the purposes to which it is to be applied, must be given to the Charity Commissioners within one month after the transfer. (Sect. 10).

All forms of personal property, except the particular descriptions mentioned in the 10th section, may be given to any charitable purpose by any person during his life, subject only to the following condition, viz.

That whensoever any gift is made for the purpose of founding any new charitable institution, the trusts whereof are declared by any deed, instrument, or writing, such deed, instrument, or writing is to be deemed void from the death of the donor, and the property so given is to be held at his death to be part of his estate, unless a copy of such deed, instrument, or writing has, during his life, been deposited with the Charity Commissioners. (Sect. 11).

Specific legacies for the promotion of art may be given without restraint. (Sect. 12).

Any description of personal estate may be bequeathed to any charitable purpose, subject to the following con

dition:

That the will should be duly executed and attested three months before the death of the testator, and that, within one month after the death, or the execution thereof, a notice, signed by the testator, of the amount so given, and the nature of the trust to which it is given, is to be delivered to the Charity Commissioners. (Sect. 12).

Trustees of charities must sell within a reasonable time mortgaged land to which they become absolutely entitled. (Sect. 14).

Defective execution of powers by will in favour of charities are to be no longer aided in equity. (Sect. 15). Except in the cases before provided for, no personal estate is to be given or bequeathed to a charity. (Sect. 16).

In order that the charitable or religious purposes to

* It will be seen in a subsequent section that such land must be aliened within a certain number of years.

which any property is devoted should not be kept secret, trustees are rendered personally liable for the rents and profits, if they should wilfully omit to give the notices to the Charity Commissioners required by the act, by a suit at the instance of those who would be entitled in the absence of the trusts; or in the event of their neglect for five years, by a suit at the instance of the Attorney-General. (Sect. 18).

The provisions in the 18th and some of the preceding sections will go far to prevent the occurrence of such cases as that of Metairie v. Wiseman. They will prevent many a gift, extorted from persons under the influence of superstitious fears, or the weakness occasioned by approaching death, and will enable relatives of the donor either to contest a gift which they believe to have been improperly obtained, or to see that it is applied to the purposes for which it was destined. Provisions are then made for curing the defects in the title to land heretofore bonâ fide sold, (sect. 19), or given (sects. 20, 21) for charitable purposes.

It then repeals the act for chantries collegiate. (Sect. 22).

The next section enables corporations to advance money on the security of real estate, (sect. 23), and to avail themselves of these securities by foreclosure or otherwise; but they will incur a forfeiture of the land unless they sell it within five years. (Sect. 24).

The Charity Commissioners must acknowledge the receipt of all documents forwarded to them under the above provision, and their receipt is to be evidence of delivery, (sect. 25); and they must also register the notices given to them under the act; but notices of gifts by will to charitable purposes are not to be acces sible to the public during the life of the testator, nor are the same to be made accessible after his death if he shall have revoked such charitable gifts. (Sect. 26). With reference to this section we must observe, that although the bill carefully provides for the public not having access to the register of charitable gifts in some cases, it does not, except inferentially, provide for their access in cases in which it appears to be the object of the act that there should be the greatest publicity.

Lastly, the bill is not to apply to Scotland or Ireland. (Sect. 27). Upon what principle is the bill confined to England? Why should Scotland and Ireland be exempted from its operation? It is true, that the act of Geo. 2 was not extended to Scotland or Ireland; but if the present is a good measure, the fact of there not having formerly existed one of a somewhat similar character in those countries seems to be no reason why they should be deprived of its benefit now. If it be bad, why should England submit to it? Judges have occasionally said, in remarking upon the Mortmain Act, that its policy was not applicable to our colonies, or to Scotland and Ireland. That, however, seems to be an assumption far from correct; but, like many others proceeding from the Bench, because it becomes law it is yielded to, without doubt, as an authority. Why, however, the Mortmain Act, and, above all, the bill we have before been examining, should not be considered applicable, at any rate, to Ireland, where the same laws prevail, and where there are at least as many evils to be guarded against, seems difficult to say.

in

The principle of the bill is to prevent gifts to charitable or religious purposes being made by persons extremis, or without due consideration; to give publicity to these gifts; and to see that by no secret or eva sive administration by trustees they should be applied in a manner not contemplated by the donor. It is true, that in Scotland there is a wholesome restriction upon dispositions made to the prejudice of the heir by a person on his deathbed. That, however, is not the case in Ireland. It may, however, be said that one Christian community in Ireland is not endowed, and

that every facility should be given to its priesthood to obtain endowments for their religious and charitable institutions. The same reasoning would, however, apply to the cases of various communities of Dissenters in England. The bill, however, does not seek to prevent gifts to charitable or religious purposes; it seeks only to prevent the exercise of undue influence in obtaining them; and there seems to be no reason why in Ireland opportunities should be afforded to any religious sect to obtain from the dying penitent gifts which might be represented as covering a multitude of sins; or why conventual communities should be tempted to withdraw themselves from the contemplation of celes-, tial things by exertions to draw or retain within their precincts the wealthy widow or the youthful heiress, carefully trained and cautiously led into the regions of religious romance.

an injunction to restrain the setting up of the legal estate. The case is different where the deed is declared void on such grounds of fraud as would invalidate it at law, and the Court is merely exercising that jurisdiction which it has concurrently with Courts of law. Here the conveyance was declared void in equity as being a breach of trust. If the conveyance had been void at law, the question as to improvements could not have arisen. But granting that the decree could defeat the legal operation of the deed by relation, that, under the circumstances, would not have afforded the desired relief to the charity, for the defendants had a clear and admitted legal title by adverse possession, independently of any conveyance; and the information sought relief against that title, on the ground of the charitable trust. That relief, beyond the account of the rents and profits, seems to have been denied them.

The most interesting question in the case was, however, that which arose on the plea of the Statute of

STATUTE OF LIMITATIONS.

In the case of The Attorney-General v. Magdalen College, Oxford, (18 Jur., part 1, p. 363), the Master of the Rolls lately decided that the Statute of Limitations, 3 & 4 Will. 4, c. 27, is incapable of operation in favour of a title by possession adverse to a charitable trust, when the trust is of such a nature that it can only be enforced by information. The principle of the decision seems to go further, and to involve the proposition once asserted by Lord St. Leonards, (The Incorporated Society v. Richards, 1 Dru. & W. 258), but afterwards retracted, (The Commissioners of Charitable Donations v. Wybrants, 2 Jo. & Lat. 196), that trusts for public charities are not within the statute. The decision was made in an information on the relation of certain inhabitants respectively of the parishes of St. Olave and St. John, Horselydown, (formed out of the ancient parish of St. Olave), seeking to set aside a deed of conveyance of the 3rd March, 1790, whereby certain charity land was absolutely conveyed to the Master and Fellows of Magdalen College. It appeared that for upwards of a century before the conveyance the rents of the land had been applied for the benefit of the poor of the parish; but the origin of the trust and the title to the legal estate were not shewn. The conveyance in question was a feoffment in fee in consideration of a perpetual annuity of 15l. The purchasers entered into possession and levied a fine, and had continued in possession up to the time of the information. The defendants relied on the sufficiency of the consideration, the fine, and their title by possession under the Statute of Limitations. The decree declared the conveyance void, directed it to be delivered up to be cancelled, an account of the rents and profits since the filing of the information, and the land (which was covered by buildings extending to other land) to be marked out by metes and bounds. The question as to the defendants' right to an inquiry as to improvements was left open. The information asked for a reconveyance; but the Master of the Rolls said, "As respects the reconveyance of the property, I expressed my opinion at the hearing, that the declaration of the Court, declaring the deed to be void, and delivering it up to be cancelled, would revest the estate. I expressed my opinion to that effect in the case of Hoghton v. Hoghton, (17 Jur., part 1, p. 99; 15 Beav. 321), that where a deed was marked cancelled' by the Court, the parties were put in exactly the same position as if such deed had never been executed." In this respect the decree seems to have been erroneous. A decree, declaring a conveyance of the legal estate to be void on equitable grounds, and the subsequent cancellation of the deed, cannot revest the legal estate, though it may entitle any party claiming the benefit of the decree to

ants had a good title, either under the conveyance and fine, or under the Statute of Limitations. As to the bar of the remedy under the trust, the enactments in point are the 24th and 25th sections of stat. 3 & 4 Will. 4, c. 27. Sect. 24 enacts generally, that "no person claiming any land or rent in equity shall bring any suit to recover the same, but within the period during which" he might have recovered at law, if his title had been legal; but by sect. 25, "when any land or rent shall be vested in a trustee upon any express trust, the right of the cestui que trust or any person claiming through him, to bring a suit against the trustee or any person claiming through him, to recover such land or rent, shall be deemed to have first accrued, according to the meaning of this act, at and not before the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him." The operation of this provision seems perfectly clear. It prevents time from operating as a bar to equitable claims under an express trust against the trustee, or those deriving title from him other than purchasers for value-i. e. purchasers for value with notice; for the want of notice would be a defence independently of the statute. "Any person claiming under the trustee" must mean, in all cases where the defendant relies on the legal estate, a person deriving the legal estate from the trustee. But if the defendant has been let into possession by the trustee without a valid conveyance, so that the trustee can at any moment eject him, then, as both his legal and (by the hypothesis) his equitable titles are invalid, he cannot, either while his possession is ripening into a legal title under the statute, or afterwards, be said to claim under the trustee; and the 25th section is not applicable in letter or in spirit, and possession adverse to the cestui que trust may be relied on. (See The Attorney-General v. Flint, 4 Hare, 149, where the true grounds of the decision are not perhaps very clearly expressed). In a suit against the trustee and a third person who alleges a title through the trustee, lapse of time is no defence under the statute to the trustee, and no defence to his co-defendant, unless he makes out his title as purchaser for value at the commencement of the enjoyment on which he relies. But if he makes out a title, not through the trustee, but adverse to him as well as to the cestui que trust, as by adverse possession during twenty years, and also shews possession adverse to the cestui que trust, then he does not come within the terms of the 25th section, for his defence is that of a legal title, which was never bound by the trust. This, if we may venture to differ from the very able and learned judge who decided the case, appears to have been the position of the defendants in The Attorney-General v. Magdalen College, on

the assumption (which seems to us the proper one) that the conveyance of 1790 was inoperative at law. They had a legal title by adverse possession, which was not bound by the trust. If, on the other hand, the conveyance was operative at law, the remedy of the cestui que trust was barred, because the college, being purchasers for value, were entitled, under the 25th section, to the benefit of the statute, assuming that it was capable of operating against such cestui que trust.

This conclusion would have been allowed by the Master of the Rolls if the trust had been of a private nature; but the Court held that the trust in question did not come within the statute at all, because the information was not "a suit by a person claiming the land in equity," or rather, as the Court put it, because "there had not existed any person or class of persons, other than the Attorney-General, who, since the date of the conveyance in 1790, could by themselves individually have instituted any proceedings for the purpose of redressing the wrong which had been inflicted on these parishes by the alienation of the property;" and because," where no such person or class of persons existed, the stat. 3 & 4 Will. c. 27, does not bar a suit by the Attorney-General, whether ex officio, or at the relation of others, to redress the injury.' The condition in the second proposition implies, that though an information is not a suit within the statute, the remedy by information would be barred by the effect of the statute in cases of charitable trusts enforceable directly at the suit of objects of the charity, without the intervention of the Attorney-General; and if trusts for public charities are within the act at all, this appears to be a logical deduction from the 34th section, which bars the right as well as the remedy; so that an information, though not (according to the doctrine of the Master of the Rolls) a remedy within the scope of the act, must fail if it is founded on a right originally enforceable by means of a remedy within the act, which right is extinguished by the bar of that remedy.

In support of the conclusion that the trust was not within the statute, the Court relied, first, on the rule existing prior to the statute, that time is no bar to a charitable trust; secondly, on the omission of any express reference to charitable trusts in the statute; and, thirdly, on the inapplicability of the expressions used in the statute to the case of an information. The 24th section limits the time within which any person claiming any land or rent in equity" may bring any suit to recover the same. The word "person" is by the interpretation clause extended to a corporation, and to a class of persons as well as to an individual. After referring to the doctrine of Lord St. Leonards in The Attorney-General v. Persse, (2 Dru. & W. 67), that time does not begin to run against a cestui que trust until there is some person in existence who is entitled to claim*, * In The Attorney-General v. Persse, a testator, having devised the lands of Ballinruane to R. P. for life, remainder to B. P. in tail, gave to his executor 507. to build a school on the lands of Merton, in Galway, and charged the devised lands with a yearly rent-charge of 251., to be paid thereout, as a salary to a schoolmaster for the said school, which schoolmaster should be in the nomination of the person for the time being in possession of the estates in Galway, (apparently different estates from those charged with the rent-charge), with a power to the schoolmaster to enter and distrain for arrears. More than twenty years having elapsed, and no school having been built or schoolmaster appointed, it was held that the statute was no defence to an information seeking, among other things, an account of the rent-charge, because (assuming that charities were within the statute) the time could not begin to run until there was a person to claim the benefit of the trust. It will be observed that the rent-charge was in terms legal, but it was necessarily void at law for want of a defined donee. It was held good in equity as a trust. If a trust, it was an express trust, and so protected by the 25th section. But the better view (see 2 Jo. & Lat. 191, 197; Petre v. Petre, 1

his Honor said, "For the defendants it was urged that the following persons were in existence from the date of the conveyance until the filing of the information, any one of whom was entitled to claim, and might have instituted a suit for the recovery of this land, namely, the Attorney-General, the churchwardens and overseers of those parishes, and the inhabitants of both parishes, or any one of them. With respect to the Attorney-General, he does not appear to me to be such a person as is contemplated by the statute." The words in the statute mean a person who has some beneficial estate, interest, or right in the land. The AttorneyGeneral is not the cestui que trust, nor does he claim through any cestui que trust; he sues as representing the Sovereign-the parens patriæ. The relators are no parties to the cause they are mere sureties for costs. His Honor then proceeded to shew that a suit by the church wardens and overseers and the rector, if maintainable at all, would not have been a suit within the meaning of the 24th section; and that there was no authority or principle to shew that a suit could have been maintained by some of the poor inhabitants on the part of the parish, suing on behalf of themselves and the rest of the inhabitants. "In the case of a breach of trust affecting many persons, but properly of a public character, the Attorney-General, I apprehend, can alone sue with propriety." We do not propose to discuss this proposition; but assuming it to be sound, it must be admitted that the decision is not at variance with the language of the act. A charity information is a suit, being a bill of information, just as an ordinary bill is a bill of complaint or petition-it is a suit to recover the charity property-but it is not a suit by any person who literally claims the property, either beneficially or as trustee; or if it is said that the Crown, though it claims no beneficial interest in charity property, and no legal estate as trustee, yet claims, as parens patriæ, the dominion over it for the purpose of enforcing performance of the trusts, the answer is, that the Crown is not named in, and therefore not bound by, the Statute of Limitations.

If it is said that this is a narrow construction, and that the objects of the charity are substantially parties to the suit, which is brought for their benefit, and that in other cases the equity of the statute has been applied to cases not within its letter-as where it was held that the statute was a good defence to a claim by a defendant, although he could not be said to have brought the suit-the answer is, first, that the case of a defendant falls within the letter of the 34th section, which extinguishes the right as well as the remedy; and, secondly, that the case of a charity is not analogous to any case expressly provided for. A charity is, in effect, a legal perpetuity. Every object of the charity, as he comes into existence, has an original claim under the trust, not in any way derived through other prior or existing objects; he has a new right, and there is no bar under the statute analogous to the defeating of such a right by anticipation. Even in the case of creditors, who are expressly included as a class in the scope of the word

person, "the time does not begin to run against an individual debt, payable on a contingency or in future, until the time for payment has arrived. That the Legislature has omitted to provide a bar in the case of charities may be strange and inconvenient; but the Court of Chancery is justified by the authorities in not extending the statute by analogy to charitable trusts. And here a consideration occurs adverse to the suggestion, that if there had been a direct remedy for a cestui Drew. 395) seems to be, that a charge on property in the hands of the beneficial donee does not constitute an express trust within the 25th section, but is left to the general operation of the 24th section. In that view the decision of The AttorneyGeneral v. Persse appears to stand on the same ground as that in The Attorney-General v. Magdalen College.