Sect. 64. rules thereof appointed to be held and convened, to refer such question or dispute to the arbitration of the Commissioners, who shall accept such reference and act therein as arbitrators, and their award shall be final, and may be made a rule of her Majesty's High Court of Chancery (b).

(a) Sect. 46 of the Charit. Trusts Amend. Act, 1855, post, extends this section to all charities within the Charit. Trusts Acts. The words in italics having thus become unnecessary were repealed by the Stat. Law Rev. Act, 1875.

See, further, as to the protection from liability afforded by these Acts, sect. 16 of this Act, ante, p. 475, and note thereto.

(b) As to making awards rules of Court, see Dan. C. P. 6th ed. pp. 2189, 2190.

Legal estate in charity

lands vested corporations,

in municipal

&c. at the

date of 5 & 6

Will. IV.

c. 76, and not since con

veyed to

vest in

out convey. ance, &c.

65. The legal estate in all lands which at the time of the passing of the Act of the Session holden in the fifth and sixth years of King William the Fourth, chapter seventy-six, was vested in the body corporate of any borough which became subject to the provisions of the said Act, or in any one or more of the members of such body corporate, in his or their corporate trustees, shall capacity, solely or together with any person or persons elected trustees with- solely by such body corporate, or solely by any particular number, class, or description of members of such body corporate, in whole or in part in trust or for the benefit of any charitable uses or trusts whatsoever, and which legal estate shall not have been since duly conveyed or assured to and vested in the trustees appointed by the Lord High Chancellor under the provisions of the said Act, or such of them as shall be surviving and continuing trustees, or otherwise lawfully conveyed, aliened, or disposed of by such body corporate or member or members thereof, shall from and immediately after the passing of this Act, and without any actual conveyance, assignment, or other assurance thereof, be vested in the trustees so appointed, or such of them as shall be surviving and continuing trustees under such appointment as aforesaid, according to the respective estates and interests therein, and subject to such and the same charges and incumbrances and upon such and the same trusts as the same were respectively

subject to previously to such vesting; and in every case, upon Sect. 65. the death, resignation, or removal of any of the trustees, and upon any appointment of any new trustee or trustees respectively, the legal estate in the same lands, and in all other lands subject to any such charitable uses or trusts which may for the time being be vested in the trustees or any of them, or in any persons or the heirs or devisees of any person who may have died, resigned, or been removed, shall vest in the persons who after such death, resignation, or removal, and such appointment of such new trustee or trustees respectively, shall continue or be the trustees for the time being, without any conveyance or assurance whatsoever (a).

(a) Repealed by the Municipal Corporations Act, 1882, post; sect. 133 of that Act being substituted. See also ante, pp. 197 et seq.

of terms.

66. In the construction of this Act, except where the Interpretation context or other provisions of the Act may require a different construction, the expression "Court of Chancery "shall mean and include the Master of the Rolls and every Judge of the Court of Chancery in England; the expression "Lord Chancellor" shall mean and include the Lord Chancellor of Great Britain and the Lord Keeper and Commissioners of the Great Seal of Great Britain for the time being; the expressions "District Court of Bankruptcy" and "District Court" shall mean and include every District Court of Bankruptcy established or to be established under the Act of the fifth and sixth years of the reign of her present Majesty, chapter twenty-two, or under any other Act or Acts passed or to be passed for the alteration or amendment or the extension of the same Act, or for the establishment of any District Court or Courts of Bankruptcy in England or Wales, and every Commissioner or Judge of every such District Court (a); the expression "County Court" shall mean and include every County Court holden or established or to be holden or established under the Act of the ninth and tenth years of her Majesty, chapter ninety-five, or any Act or Acts passed or to be passed for the alteration or

Sect. 66. extension of the same Act (b), and every Judge of any such Court; the expression "charity" shall mean every endowed foundation and institution taking or to take effect in England or Wales, and coming within the meaning, purvieu, or interpretation of the statute of the forty-third year of Queen Elizabeth, chapter four, or as to which, or the administration of the revenues or property whereof, the Court of Chancery has or may exercise jurisdiction (c); the expression "trustee" of any charity shall mean and include every person and corporation seised or possessed of or entitled to any real or personal estate, or any interest therein, in trust for or for the benefit of such charity, or all or any of the objects or purposes thereof, and every member of any such corporation; and the expression "the Board" shall mean the said Charity Commissioners sitting as a Board under this Act (d); and the expression "endowment " shall mean and include all lands and real estate whatsoever, of any tenure, and any charge thereon, or interest therein, and all stocks, funds, monies, securities, investments, and personal estate whatsoever, which shall for the time being belong to or be held in trust for any charity, or for all or any of the objects or purposes thereof (e); and the expression "land" shall extend to and include manors, messuages, buildings, tenements, and hereditaments, corporeal and incorporeal, of every tenure and description.

Charity.

Endowment

(a) The words in italics were repealed by the Stat. Law Rev. Act, 1875, District Courts of Bankruptcy having been abolished by the Bankruptcy Act, 1869, s. 130.

(b) Now the County Courts Act, 1888, 51 & 52 Vict. c. 43.

(c) "Charity" includes every institution in England or Wales endowed for charitable purposes, but not any charity or institution expressly exempted from the operation of this Act (see sect. 62, ante), and words applying to any person or individual apply also to a corporation, whether sole or aggregate. As to what are charities within the Statute of Elizabeth, see ante, Chap. I.

A charity is not the less a charity within this definition because its endownot perpetual. ment is not perpetual. An endowment which the trustees are at liberty to put an end to is, until that has been done, within the Act: Re Sir Robert Peel's School at Tamworth, L. R. 3 Ch. 543; and see ante, p. 33.

According to this definition the question whether a charity is within the Act is not governed by the question whether the charity is to be administered in England or Wales, but by the question whether the endowed foundation or institution is to take effect in England or Wales: Re Duncan, L. R. 2 Ch. at p. 360.

A charity founded and endowed in England or Wales, although the revenues are applied abroad, is within this definition: Re Duncan, L. R. 2 Ch. 356. It was stated in that case (see p. 360), that the Charity Commissioners consider charities, of which the proceeds are applicable in England and Wales, to be within the Act, although the endowments may not have been in England or Wales.

That an English charity, of which the revenues are to be applied abroad, was within the jurisdiction of the Court of Chancery, appears from Att.-Gen. v. Ironmongers' Co., 10 Cl. & F. 908; and Att.-Gen. v. Gibson, 2 Beav. 317, n.: and see ante, pp. 127, 128.

Sect. 66

(c), (d), (e).

(d) By sect. 6 of this Act, ante, it is provided that the Charity Com- Board. missioners shall sit, from time to time, as a Board for carrying this Act into execution, and that any two of such commissioners may form a Board.

(e) It was held, by Romilly, M. R., that this definition of "endowment" Endowment. must be construed consistently with what he held to be the meaning of the word in sect. 62, namely, the devotion of property to a specific and particular trust; and that the present clause does not mean that the mere possession by a charity of any property of the kinds here enumerated constitutes an "endowment," but that any such property may be constituted an endowment by being impressed with a particular and specific trust: Governors for Relief of Poor Widows, &c. of Clergymen v. Sutton, 27 Beav. at p. 665. See ante, pp. 526, 527.

This interpretation seems unsatisfactory. There is nothing in the definition of "endowment" contained in the section to point to any distinction between property impressed with a particular and specific trust and other property. It is submitted that the definition includes all capital property belonging to a charity of whatever kind, whether impressed with a particular and specific trust or not, and whether derived from voluntary subscriptions or from a single donation or from whatever source; and it has already been suggested (ante, p. 527) that this is the meaning which ought to be attributed to "endowment" in sect. 62 of this Act.

Finnis and
Young to

Forbes and

The case of Finnis and Young to Forbes and Pochin (No. 2), 24 Ch. D. 591, seems also to be open to criticism. In that case the facts, as stated by the affidavit of the vendors' solicitor, were as follows:-The Tower Ward Charity Pochin. School was a school supported by voluntary subscriptions, the bulk of which, as collected, were required for the purposes of the school, while the residue was invested in the name of the treasurer or appropriated by the directors for the benefit of the school. In 1808, the then school premises having been sold for 1,2007., 91, Great Tower Street was, in consideration of 2,0007. recited to have been paid out of funds belonging to the charity, conveyed to the directors of the charity upon the trusts therein mentioned. Bacon, V.-C., held that there was no endowment. "In my opinion," said his honour (at pp. 593, 594), "the affidavit is sufficient, and no inference can be drawn from any word in the affidavit that it was an endowment charity, and it cannot be disputed that if it is not an endowment charity, the Charitable Trusts Act does not apply to it. . . . . The school is kept up by nothing but volun

...

Sect 66 (e).

Burden of proof.

Investment

tary subscriptions. There is no trace of any endowment; there is not a trace of anything from which it can be inferred that this charity had anything in the shape of an endowment."

The first observation upon this decision is that, although the affidavit stated that the school had been supported by voluntary contributions, it did not state that those contributions were contributions intended to be applied as income. Some of the contributions may, therefore, have been intended to be used as a capital fund. In this, however, the case merely followed the view of "endowment" taken in Governors for Relief of Poor Widows, &c. of Clergymen v. Sutton, ante, and is subject to the same criticism as has been hazarded in regard to that decision.

The second observation is this. The affidavit made no statement as to the mode in which the school premises themselves were provided. Surely, if the funds with which the school was kept up did not constitute an endowment, the school premises did. The old school was sold for 1,2007., and the property in regard to which the question in the case was raised was afterwards purchased for 2,000l., stated to have been paid out of the charity funds. It is certainly probable that that 2,000l. was made up in part of the purchasemoney received in respect of the old school premises. If so, it is difficult to see how that part of the fund, at all events, did not constitute an endowment.

It is worthy of note that in Royal Society of London v. Thompson, 17 Ch. D. at pp. 415, 416, Hall, V.-C., prefixed to the order a statement that the property had been acquired out of funds which might be legally applied as income, and did not form an endowment; but that in the case now under consideration, Bacon, V.-C., refused to insert any statement in the order, except that the property "did not form an endowment," saying that the other words in the order of Hall, V.-C., did not seem to apply.

Furthermore, it must be observed that the effect of the decision in Finnis and Young to Forbes and Pochin (No. 2) seems to be to throw the burden of proof that a charity is subject to the Charitable Trusts Acts upon those who allege that it is an endowment charity. The Vice-Chancellor says "no inference can be drawn from any word in the affidavit that it was an endowed charity." The Charitable Trusts Acts bring every charity within the jurisdiction of the Charity Commissioners, except such as are exempted by sect. 62. If a charity is found in existence with property belonging to it, prima facie it is within the Acts, and the burden of proof that it is exempted must surely rest upon those who raise that contention.

The investment by a charity of its voluntary contributions in land, or other of voluntary permanent security, does not convert it into an endowment: Governors for contributions. the Relief of Widows, &c. of Clergyman v. Sutton, supra; Finnis and Young to Forbes and Pochin (No. 2), 24 Ch. D. 591, and other cases cited in note (d) to sect. 62 of this Act, ante, p. 527.

Extent of Act.

Short title.

67. This Act shall not extend to Scotland or Ireland.

68. This Act may be cited as "The Charitable Trusts Act, 1853."