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 Moof, 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

Owen 33, 34.

Dake, 184.

ation upon the statute; so that if there were assets of that estate, or of his own estate, that was to execute it, the use should be supported; for the goods in the hands of administrators were all to go and be employed to charitable uses, and kindred and children could have no property nor pre-eminence in them, but under the charity of the ordinary. It was confessed, that when the decree was made by the commissioners the estate would have borne it, and there were assets; and there'fore there was negligence in the management of the estate: whereupon Damus was compelled to pay the charity legacy, and to take the help of the court for recovery of the debts of the intestate.

So when executors, having effects of their testator to 'dispose of to pious uses, they could not forfeit them, for they were not in their own use; but their own power is subject to the control of the ordinary, and the ordinary might make distribution of them to pious uses. And it was said at the bar, that the ordinary might make the executors account before him, and punish them according to the law of the church, if they spoil the goods; but cannot compel them to employ the same to pious

uses.

Again: A testator having goods left in his hands to a charitable use, made a feme covert his executrix: her husband having no notice of the use, gave the goods that so came to his wife by will, or otherwise converted them to his own use; the wife only was chargeable, and not the executors of the husband, unless they had ́had notice of the use: "and if such goods were wrongfully taken away, and sold in a public market, the trespasser was to be charged with a recompense, and the recoveter would remain liable to the charity.

So an administrator, durante minori etate, without notice of a charitable use, employed assets to the benefit

of

of the infant, the effects of the infant were liable to the charity; but if he wasted the assets, he would himself be liable.

1

Assets, in equity, were held to satisfy charitable uses, Duke, 186. before debts or legacies; because assets in equity were disposable by this statute, which ordains them to make recompense; and the equity of this statute was held to be above the equity of the chancery. But assets in law were held to satisfy debts before charity, because the common law must order their disposition; yet charities were then to be preferred before other legacies, in disposition of assets in law. The case is much otherwise at this day, as will be shewn hereafter.

These cases are mentioned to shew the spirit of those times, and the construction which even the best lawyers were willing to extend to an act favourable to charity. These, among a variety of others, which have necessarily been examined, may sufficiently prove how very different the law is at this day, since the last mortmain act was passed.

A legacy to a parish church is good, and belongs to the churchwardens for the repairs of the church, and not to the vicar. Money or charity given for repairing a church is one of the charities mentioned, preferred, and established by 43 Eliz. c. 4. as on the one hand the parson of the church is a corporation for the taking of land for the use of the church, and not capable of taking goods or any personalty on that behalf; so on the contrary, the churchwardens are a corporation to take money or goods, or other personal things, for the use of the church, but are not enabled to take lands. Goods given or bought for the use of the church are all bona ecclesia, for the taking whereof the churchwardens may bring trespass, as well if the trespass were committed F. N. B, 91 K.

2 P. W. 125. 1722.

A. D. 1623.

in the time of their predecessors, as in their own time, Attorney v. Ruper.

I have purposely avoided entering farther into the cases, with the decrees made by the commissioners acting under the authorities of this act, as many of them, however curious, are not so useful at this time, as the attention which will be found necessary to those which have arisen since the statute of 9 George II. c. 36.

As the 39th Eliz. c. 5. was meant to continue in force only twenty years, that short term expired in the midst of the zeal of many charitably disposed persons, whó, however, having caught the example, extended their exertions beyond that period; and in order that their pious endeavours for the welfare of their fellow-creatures

21 Ja. 1. c. 1. might not be frustrated, the legislature passed an act to render the powers of that statute perpetual, and to give the same privileges to all hospitals erected since the expiration of that term of twenty years, as they could have had under the former statute.

Apprentices.

43Eliz. c.2.s.5. A. D. 1601.

The legislature has likewise had regard to the welfare and proper disposition of youth, in the labour of husbandry, or in trades and manual occupations; although these endeavours have not always, for want of enforcing stricter regulations, been attended with success. Queen Elizabeth, in her last statute for relief of the poor, empowered church-wardens and overseers, by the assent of two justices of the peace, to bind out poor children taking benefit of their parish, to be apprentices where they shall see convenient, till the man child should arrive at the age of 24 years, and the woman child to 21, or time of her marriage; and the same should be as effectual as if such child were of full age, and by indenture of covenant bound him or herself. And considerable donations having been made to corporations, to be continually

A. D. 1609.

continually employed in binding out, as apprentices, a great number of the poorest sort of children, from which great benefit had accrued, as well to such corporations as to the commonwealth in general, in the saving young people from idleness and disorderly lives; and as it was very likely, that many other well-disposed people would be the better encouraged, willingly to follow the like good example, in bestowing also large sums of money to the same good and godly purposes, if it might be so provided, that such monies as had been already so freely given, or as then after should be given, for the binding out of such poor children apprentices, might continually remain, and be wholly employed accordingly: It was enacted, in the following reign, that all such donations 7 Jac. 1. c.3. s.2. should continue and remain in the hands of any corporation, or in places not incorporate, in the hands of the parson or vicar, constable, church-warden, collector or overseer, to such charitable uses, for the binding forth so many apprentices as the donors should appoint by will or otherwise. The master or mistress so receiving Sec.. 3. any such fee, to be bound with good sureties to repay the same, at the expiration of the seven years for which the apprentice is bound, or if he die within that time, then within one year of his death; and if such master or -mistress die within the apprenticeship, then the same to be repaid within one year, that so the same money may be again employed for the purpose of placing such apprentice with some other person, for the residue of his term, at the discretion of the trustees.

..

The money to be so appropriated within three months Sec. 4. after it shall come to their hands; and if there should not then be fit and apt persons to be so bound, then such of the poorest children of any of the parishes next adjoining to be bound forth at the discretion of the trustees; choice being from time to time to be made of the poorest Soc.s