The truth is, that under this last-mentioned act, à Roberts, 354. devise to a charity was considered as operating not as a will, but as an appointment, and therefore seems wholly independent of the act of Henry VIII. The danger of parol and nuncupative dispositions of land, after the 43 Eliz. which had broke through the barrier in favour of alienations to charitable uses, seems to have induced the judges to hold, that a testament giving land to a charitable corporation was not good, unless in writing according to the exigency of the statute of wills, notwithstanding such devises were excepted out of that statute, and validated by the statute of Elizabeth, not as testamentary dispositions, but as privileged conveyances under the special authority of that law. See Jen- 1 P. W. 247. ner v. Harper, Prec. Cha. 389. Between the statute 29 Charles II. c. 3. and that of 9 George II. c. 36. when the statute of 43 Eliz. c. 4. was in force as to wills, it was sometimes a question whether a devise to a charity, or to charitable uses, of real estate, unattested by three witnesses, and therefore void under that statute, could operate as an appointment under the latter statute. Lord Somers held, that as the testator intended to dispose of his property by will, and that being void as a will, could not be construed into, and operate as an appointment. But afterwards Lord Hobart and the Chief Baron held, that the devise was void in law, because the statute of wills did not allow devises to corporations in mortmain; but that it was within the statute of uses, under the words "limited Collison's Case, and appointed." Hob. 136. it does not appear that our law makes any distinction in favour of a will Cro. Car. 57. for the benefit of a charity; and on a deficiency of assets, legacies to a 2 P. W. 368. charity will abate in proportion with others. But, nevertheless, our 1 P.W.674.422. courts of law or equity will not enjoin the spiritual court from proceeding in legatory matters according to the civil law. And 1 Vern. 230. And in the case of Adlington v. Cann, mentioned in its proper place, it has since been settled, that all charitable uses fall entirely within the restrictions and requisitions of the statute of frauds. By a due attention to the language of the sixth section of this statute, it will appear that care was taken to protect all purchasers of land, charged with a charitable use, if they had not due notice of it, from the proceedings of the commissioners for any breach of the charity trust; but, on the contrary, that their measures should be directed rather against the vendors, who had thereby abused it—but a purchaser who had bought for an inadequate consideration, would not be protected by this clause; and its inadequacy would be measured according to the rule of the civil law. If a rent-charge were granted out of land to a charitable use, and the land be afterwards sold for a valuable consideration to one who had not notice of it, it has been said that the rent remains; because the purchase was of another thing, which was not given to the Greensted Case, charitable use. But in Tothil, 258, the same case is Duke 64. referred to as an authority, that a purchaser coming in without notice of a rent-charge, shall not be chargeable therewith, although given to a charitable use-and this seems the better opinion. If the first purchaser give a valuable consideration, and yet have notice, all that claim in priority under the estate and title, whether they have notice or not, will be bound by the decrees of the commissioners under the 43 Eliz. c. 4. This rule differs from the general rule of equity in this respect-a subsequent purchaser, without notice, not being affected by notice in the person of whom he purchased-with this exception, however, the same rules seem to prevail in the construction of the statute with respect to notice as are generally adopted adopted by equity. It was therefore settled, that notice Duke, 190. to a purchaser must be in the same transaction. In a case where land given to charitable uses was intended to be sold by act of parliament, and when the bill was read, it was declared that the land was chargeable with a charitable use, and an offer was made to otherwise assure the charitable use. The bill did not pass-and afterwards the land was sold to one of the members who spoke in the debate. Yet this notice was held not to be sufficient, because it was not made known to the purchaser at the time of his purchase, except as a member of parliament. Thus, constructive notice is in its nature no more than evidence of notice; the presumptions of which are so violent, that the court will not allow even of its being controverted but it is difficult to say what will amount to constructive notice.-See Roberts on Statute of Frauds, who offers some useful rules on this subject. A liberty within a parish, and contributing towards the repairs of the parish-church, but having distinct overseers, and maintaining its own poor distinctly, is not entitled to a share of the charities given or bequeathed to the parish generally; though it is entitled to its proportion of the collections at the church-door, and at the sacraments. Before the statute of 43 Eliz. c. 4. there were no such officers as overseers of the poor, and therefore the liberty was held to be entitled to its share of all such charities as were given before that part of the parish was separated by such distinct officers. And as Attorney-Genethey contributed to repairs and towards the parson and 1 P. W. 670. lecturer (there being at that time, in vacation, no preaching at the Rolls chapel), and to the charities of St. Dunstan's parish, it was held that the poor ought to have a proportionable share of those charities; and a book was ordered for entries thereof. It was held also, that a parson is not bound to distribute money given at sacraments ral v. Grant, 1 Burn Eccl. Law, 285. 82. Duke, 65. 43 Eliz. C. 4. 2 Vern. 387. Uses. sacraments among the parishioners; but the court said, surely if equal objects of charity are to be found within the parish, they in reason ought to be preferred. Money was given to maintain a preaching minister: this was not a charitable use named in the statute; yet Duke, Cha. Us. by the Lord Keeper and two judges it was decreed to be good, and a charitable use within the equity of the statute. By parity of reasoning, all charitable donations now made to many of the charities subsisting, which had no existence at the time of the act (A. D. 1601), are good under the same statute, and therefore liable to the same examination. But it was held, alsc, that a school, unless it be a free-school, was not a charity within the provision of this act, and consequently the Vin. Tit. Cha. inhabitants had not a right to sue in the name of the Attorney-General-but the practice is now different. It was held, also, that this act supplied all defects of assurances, by any misnamings (in addition to the 14th Elizabeth, c. 14. already mentioned), provided the donor had a good disposing power in him-and thus the favourable construction to all charity acts, which was a maxim universally held and adopted in those days, induced them to establish a devise of lands to a charitable use, notwithstanding the many previous restraints of mortmain, under the construction of the words limited and appointed, used in this act; and it was allowed that the devise was void in law, but it was good as an appointment, under the statute, even without a surrender, if it was copyhold; but a parol devise being defective as a will, could not be admitted as an appointment. So where lands were devised to a college to maintain scholars, it was declared that the corporation were trustees for the scholars, who made a part of the corporation themselves,* 1 Black. Rep. and was an appointment within the statute. Thus pious Duke, 84, 85, Moor, 888, 890. Hob. 136. 1 Lev. 294, Prec. Ch. 391. 90. This is the fact in Dulwich College. and and worthy men, seeing how much the court of chancery favoured this and the former act, and the construction of trusts which was every day put upon it, instead of devising their lands immediately, devised them to trustees, with appointments to pay the rents and profits to certain Duke, 49: charitable uses. Seisin was given of lands in the grantor's life-time, and a rent-seck thereout to take effect at his death: this was held good, though the rent did not then take effect, or was then in esse at the time of the seisin given. But there was much equity in the following decision: If land be given or vested in trustees for a charitable use, and be by them misemployed, a purchaser, who had notice of the gift, should not be chargeable, further than during his own time, for the arrears; but where the rent had been concealed, he would be liable for the whole arrears; for the land was a debtor, and transit cum onere. But this is a case which, in the regularity and caution of most modern conveyances, can now scarcely ever happen. But the following case will further shew how much the courts have favoured the design of this statute: A feme covert made a will, bequeathing part of a Moor, 822: debt due to a former husband, to whom she was administratrix, to her relations, and the residue of it to a charity, and died in the lifetime of her second husband: her executors refused to meddle with the debt, because she had it but as administratrix, and could not make a will, and because it was a chose in action; whereupon administration of the goods unadministered of her first husband was committed to Damus and others; and they had thereby debts of 2000l. besides the debt so bequeathed by her. On an inquisition and decree under this act, the court decided, that though the will was void in law, yet it was good; it would serve for a declar |