one moiety of which became vested in a tenant in tail, against whom no decree for completing the contract could be made, the court refused to carry the decree as to the other moiety into effect, as well on account of the inconvenience of making the charity tenant in common with another person, as on the ground that the particular transaction had a tendency to evade the statute.

A testator being likely to die, made a conveyance of a real estate for the benefit of a charity, and ten days afterwards, by his will gave 3,000l., the exact value of that estate, and 250l. to the same charity, and gave the estate to two persons as tenants in common. On a bill for the direction of the court for the settlement of the testator's estate under his will, the master was directed to receive a scheme for carrying it into execution, and to consider in what way the money should be laid out, and a perpetual fund created for the maintenance of the charity. The master reported a scheme for laying out the 3,000l. in the purchase of the lands devised, and the 2501. in other lands convenient for building the charity school. A decree was afterwards made by the court confirming that report, and directing the scheme and other matters therein contained, to be carried into execution, which was not opposed. On an information brought on behalf of the charity to have the purchase carried into effect against the person entitled to one moiety of the estate under one of the original devisees, and against the infant son of the other devisee, who had settled his moiety of the estate on himself in tail. On the question whether the parties were entitled to the aid of a court of equity, in carrying the purchase into execution, Lord Chancellor Hardwicke said, "I cannot say this is strictly contrary to the provision of the 9th Geo. II. c. 36. The first clause of which was intended to relate to gifts or conveyances to a charity by way of donation. And it is plain, that the Legislature did not intend absolutely to forbid all kind of purchases of lands for the benefit of a charity; but has put them under some restrictions. The proviso was inserted in the House of Lords upon mention of the case of the charity of Queen Anne's

Bounty, which could not otherwise have gone on; as the method of executing it is, that the money arising from that fund is laid out in purchase of real estate for the augmentation of poor vicarages. Another consideration was, that this was not intended to prevent the execution of charities already established; in several of which, the funds are vested in trustees, with intent to lay out in lands; particularly Dr. Ratcliff's charity: but to leave them open, restraining the increase of such donations in futuro (t); that it should not be in the power of any person, or of a court of equity, to direct subsequent gifts of money to a charity to be laid out in land; for if that was their meaning, they might as well have rejected the whole bill; as the consequence would be, that a person might leave money to his executors, who might bring a bill in equity, praying a decree for laying it out in lands; yet in this very clause relating to purchases, it might be considered how far they are taken out of the statute. The meaning was, that where such purchases are made, they should not be left precarious in point of time; so that though the party should happen to die within the twelve or six months, yet the person who paid the money should not lose his purchase, or be put to risk the recovery of it back, as there might not be assets, or stocks might fall. But then the money must be actually paid, in which case, I doubt whether the other restrictions, exclusive of the limitation in point of time in the life of the party, will take place on this proviso, and am rather of a different opinion; for sometimes the money is paid on articles before a perfect conveyance; and then it would be sufficiently taken out of the act, notwithstanding the circumstance of the deed indented and inrolled is not complied with; the intention of

(t) Sir J. Leach, V. C. said, in Price v. Hathaway, 6 Madd. 313, that the object of the second section is correctly stated by Lord Hardwicke in the above case, it having been suggested by the case of Queen Anne's Bounty, and other existing chari

ties, where money was from time to

time to be laid out in land, and was meant to protect such purchases, and to remove a doubt that seemed to have been entertained, that vendors in such cases might be considered as grantors within the first section.

the act being complied with, by the actual payment and conversion made of one kind of estate into another; but in the present case, the money has not been paid. But supposing this doubtful; consider whether it would not be contrary to the true intent and principles of the act? Had this matter been fully entered into at the making that order, as it is now, I think I should not have made it; but it passed sub silentio then, the parties agreeing; and the objections not being laid before the court. There is something in this case, which may lay a great opening to evade the act, although the testator might not have intended any such fraud; but if such a precedent were made, it would be followed by a person, who knowing, if he died within a year after the conveyance, the act would make it void, gives the exact value thereof in money the same way; and then the one to be laid out in the purchase of the other. The testator's intent makes it worse, and creates a reason against it." But the court refused to carry the decree into execution, on the ground that one share of the estate had descended to an infant tenant in tail, against whom, the court would not make a decree; and the court in judging for the charity, would not decree the money to be laid out in the purchase of an undivided moiety; and therefore the bill was dismissed without costs (u).

In the Attorney General v. Davies (v), Sir William Grant, M. R. said, one of the grounds of refusing to execute the agreement in the Attorney General v. Day was, that it would be an evasion of the statute, and an indirect method of giving land to a charitable use. If the statute would have been evaded even by that sort of bargaining between representatives, because it might be supposed to originate from an intention indicated by the will, it is quite clear that a direct bargain by the will, offering money as a consideration for putting land in mortmain, would be a direct infringement of the statute; as it would be an absurd distinction, that a testator should not give land to a charity; but that he might

(u) Attorney General v. Day, 1 (v) 9 Ves. 543; post, pp. 177, 178. Ves. sen. 218.

give money in consideration of another's giving land for that purpose.

In order to bring a case within the second section of the act, the consideration must be paid by the person for whose benefit the conveyance is made; and therefore, where a pauper in custody for having left his family chargeable to a parish, in consideration of the sum of 174l. which had been expended by the parish officers in maintaining his family, made a conveyance of lands for the term of 60 years if he should so long live, in trust for the churchwardens and overseers of the poor and inhabitants of the parish, to the intent that the rents might be applied for their use in aid of the rate for the relief of the poor, it was held that such conveyance was not within this section of the act; for the consideration was not paid by the persons who were benefited by the conveyance, but out of the poor rates levied upon the persons who resided and paid rates during the time when the relief was granted to the pauper's family (w).

Where a party being possessed of a piece of land for the residue of a term of years, in the year 1796 completed at his own expense a chapel or meeting house on part of the land, and in the year 1806, 8007. was subscribed by the congregation there assembled for public worship, for enlarging and improving the same; and in consideration of the money being so subscribed, and that it should be expended for those purposes, such lessee agreed to grant an underlease of the chapel for a term of years by way of security to the congregation for laying out so large a sum of money upon the premises; and accordingly a lease for 23 years in the common form was executed to 12 persons as lessees of "all that messuage, tenement, chapel or meeting house, situate in Dartford, and which then was, and for many years past had been used as a place for the worship of Almighty God, by a society or congregation of Protestants assembling under the patronage of the trustees of the late Countess of Huntingdon's College," rendering a peppercorn rent during the life of the lessor, and after his decease, a rent of 10l. per annum

(w) Doe d. Preece v. Howells, 2 Barn. & Ad. 744.

for the remainder of the term. And on the 13th October, 1806, upon the back of the said lease was indorsed a declaration of trust, purporting to be by all the lessees, but which was in fact only executed by four; by which it was declared, that they would during the remainder of the term, stand possessed of the chapel or meeting house, upon trust for the use and benefit of the society or congregation then assembling at the chapel or meeting house, maintaining certain doctrines therein particularly described. But that in case the society or congregation of Protestants holding the doctrines aforesaid, should be totally dissolved or dispersed, and the public worship at the chapel discontinued by them for the space of twelve calendar months together, then upon further trust, to assign the premises to such person, and for such civil purposes as to the lessees should seem meet, or the survivors of them should unanimously agree. The chapel had always been used as a place of public worship for the congregation mentioned in the declaration of trust. On an ejectment being brought by the lessor for recovering the chapel against the minister who had possession, which had been previously demanded of him, the court thought that the purposes for which the lease was granted as stated on the face of it, without the declaration of trust, brought it within the statute. It was decided, that the case did not come within the exception in the statute, for the 4007. was not a valuable consideration paid to the landlord for granting the use of the premises, but was money laid out for the purpose of enlarging the building for public worship, which was for the convenience of the congregation themselves, without any reference whatever to the interest of the landlord, and therefore that the lease was void, and that the declaration of trust contained an acknowledgment that the lease was granted for a purpose which in point of law is a charitable use (x).

(x) Doe d. Wellard v. Hawthorn, 2 Barn. & Ald. 96. See ante, p. 124.