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the subject might have been exposed to. He said, whether tolls are within the statute of Elizabeth, was much discussed just before he left the bar; and he thought if the crown, being entitled to tolls, grants them as a charitable use, they are subject to all the incidents of other property so granted; but this is a different case, the crown having created them here de novo, and not granted existing tolls; this is a case which involves great difficulty (y).
It seems that a grant from the crown of certain privileges and property for the bettering of the city of Carlisle, and that the citizens thereof might be able to apply themselves to their business in the said city under greater tranquillity and in quiet, and might be the more fully animated to fortify and defend that city, if the city were specially committed to the custody of themselves ; is a charitable gift (2).
Where an information was filed by the Attorney General of Ireland, at the relation of a freeman of the city of Limerick, in Ireland, against the chamberlain and lord mayor, sheriffs, and citizens or common council of that city-stating, that certain lands and revenues were granted to and vested in the corporation at large for divers public uses and purposes-the improvement of the city, and the preservation and support of public buildings, bridges, highways and establishments therein; that the defendants had usurped the powers of the whole corporate body; and that the chamberlain, in concert with the common council, had, contrary to the charter and immemorial usage, applied the revenues to their private purposes, without reference to the citizens and freemen at large in their general assembly of d’oyer hundred, &c.; and praying that the chamberlain might account, and that a receiver might be appointed. Demurrers for want of equity and jurisdiction over a civil corporation, even in a case of a misapplication of their l'evenues by them, and that the mayor, sheriffs and citizens had an absolute and unqualified right to dispose of their revenues and estates, and did not hold the same subject to any trust, or to any account to be rendered thereof at the suit of the Attorney General or any other person, were overruled—it being decided, that the uses were charitable, and that such fact was sufficiently alleged in the general allegation in the bill—that the revenues were granted for divers public uses and purposes, for the improvement of the city, and the preservation and support of several public buildings, bridges, highways and establishments therein (a).
(y) Attorney General v. Corpora- (2) Attorney General v. Mayor tion of Galway, 1 Molloy, 103, 104, and Corporation of Carlisle, 2 Sim. 108; S. C. i Beatty, 298.
It has been laid down, that the words ports and havens in the statute 43 Eliz. c. 4, include such only as tend to the safety of ships of sail, not other vessels, and creeks for harbour, which are employed to find lights to guide ships into the haven, is a charitable use and within those words. An imposition granted upon commodities imported or transported, to be employed upon repair of ports or havens, where they shall land, is a charitable use, and within that statute (b). A gift to repair sea banks, where the sea ebbs and flows, is good, notwithstanding others stand bound, by covenant and prescription, to repair them; because it is a common good in preventing a common danger (c).
It seems that a parliamentary grant of a duty on coal imported into a town, in aid of the pecuniary inability of the inhabitants to protect the town from the encroachment of the sea, is a gift to a charitable use. It was so considered by Lord Eldon, where commissioners appointed by act of Parliament were authorized to levy a rate (not exceeding a certain proportion of the poor-rate) on the occupiers of all houses, shops, warehouses, tenements or hereditaments within the town of Brighton, for paving, lighting, and watching the town; and another rate (not exceeding a fixed sum) on every chaldron of coal landed on the beach, or otherwise brought into the town, for repairing or building works to protect the coast of Brighton against the encroachment of the sea, (the act reciting, that the inhabitants were unable to raise money for that purpose without the aid of Parliament,) with power
(a) Gort and Corporation of Li- (6) Duke, 135, (129); cited by merick v. Attorney General, 6 Dow, Lord Eldon, I Swanst. 308. 136.
(c) Duke, 135, (129).
of distress for non-payment, and liberty to apply any surplus of the coal rate, after payment of the debt contracted on the security of that rate, and the expenses of repairs, &c., in aid of the rate for paving, &c. (d).
Lord Eldon, in subsequently explaining the reasons of his judgment in the last case, stated, that although he was of opinion that the purpose for which the tolls were appropriated was a charitable use, yet it was not necessary that it should be so, to give the Court of Chancery jurisdiction upon the subject. But his judginent proceeded upon the ground, that the Court had jurisdiction to call upon persons intrusted with the application of those tolls, and to direct an account of them to be taken. His lordship added, that the authority
(d) Attorney General v. Brown, 1 from the 24th of June, 1773, a deSwanst. 265; S.C. 1 Wils. C. C. 323. finite sum should be levied, namely,
The provisions in the act of 6d. on every chaldron of coal landed Parliament for building or at the town; and a subsequent pairing groyns were prefaced by a clause authorized the trustees to recital, that the town of Brighton give security by assignment of the was situate near the sea, within six rate for any sum borrowed, not exmiles of the harbour of Shoreham, ceeding 1500l. That act continued and that great part of the former in force till the year 1810, when town having been destroyed by the another act was passed, by which, breaking in of the sea, several groyns after a recital of the insufficiency of (by which is to be understood, but- the former rate to provide against tresses constructed for the purpose the inroads of the sea, certain indi. of supporting the shore) had some viduals were appointed to repair years since been erected, which had and maintain the groyns already preserved the town, and the coast built, and, if necessary, to build was then safe and commodious for new groyns or works; and were auships to land coal, &c.; and that the thorized to levy a sum, not exceedgroyns were greatly out of repair, ing 3s., for every chaldron of coal, and the inhabitants were not able to &c., landed on the beach, or otherraise sufficient to repair the same, wise brought into the town; and without the aid and authority of Par- provided, in the same words as in liament; it was therefore enacted, the first act, for the safety and prothat the commissioners appointed tection of the town, the inhabitants by the act, or any seven or more of of which had been described as unthem, should be trustees for repair- able to protect themselves against ing the old or building new groyns; the ravages of the sea. and that for effecting the premises,
of the Attorney General v. Brown was considerably weakened by the opinion given by Sir J. Leach, in the case of Attorney General v. Heelis (e); inasmuch as the reasons on which he proceeded were considerably different from those on which the judgment in the former case was founded (f).
In the Attorney General v. Mayor of Dublin (g), it was contended, that the objects of two acts of Parliament for supplying the inhabitants of Dublin with water, were charitable; because their general purpose was, by means of a heavy tax of temporary duration, to discharge a large subsisting debt incurred for that purpose, and to afford a permanent supply of that necessary article of life to all future inhabitants of Dublin, at a comparatively trifling expense ; and because no houses were chargeable to the rates directed to be levied, which did not pay to the amount of 58. annually to the minister's money; and because all occupiers of such houses paying the less amount, which were very numerous, would derive benefit from the act without cost, and strictly in the way of charity. Lord Chancellor Manners said (h), that the question as to charity was a nice point; but that, in order to constitute a charity, it was not necessary, as had been supposed, that the gift should be to the
many of the objects considered charitable were much more beneficial to the rich than the poor-such as repairing and preserving bridges and buildings, &c., which are of indiscriminate benefit. It is the purpose that creates the charity; and although he would not decide absolutely whether the use in question was charitable or not, yet he said, that the defendants would have had great difficulty in sustaining a demurrer to the information.
We have already seen, that gifts “in ease of any poor inhabitants, concerning payments of fifteens, setting out of soldiers, and other taxes,” are amongst the charitable uses
(e) 2 Sim. & Stu. 76; ante, p. 76. the Court of Chancery had juris
i Bligh, N. S. 334, 335, 356, diction. 357.
(h) Court of Chancery in Ireland, (9) i Bligh, N. S. 312. It was 22 July, 1824. decided, upon another ground, that
enumerated in the statute 43 Eliz. c. 4: but it is said by Sir F. Moore (i), that “taxes and subsidies are not within that act; because poor men pay them not, and see no ease to discharge them of that tax. But all taxes wherewith the poor as well as the rich are chargeable, are within the intent of that law; as keeping of watches, pursuing of hue and cries, &c., but not fines for escapes for robberies."
In Mr. Thellusson's will, there was a residuary gift, in certain events, which have not yet happened, towards payment of the national debt; and therefore no decision has yet taken place with respect to the nature or validity of that gift (k).
But in Newland v. Attorney General (l), stock bequeathed to his majesty's government in exoneration of the national debt, was decreed to be transferred to such person or persons as his majesty by his sign manual should think fit to nominate for that purpose; but it does not appear upon what ground.
Of Uses and Trusts not charitable. Having considered the class of cases deciding what gifts constitute charitable uses, we proceed to those donations which, though perhaps bearing a strong resemblance to some of the cases mentioned in the last Section, have, nevertheless, been held not to come within the denomination of charitable uses.
A general direction by a testator to apply property for “ benevolent purposes,” or “to such objects of benevolence and liberality as the executor in his own discretion shall most approve of,” or in “private charity,” or even“ for charitable and public uses” in general and undefined terms, with
(i) Duke, 137, (132).
227-343; See 2 Sim. & Stu. 596.
(1) 3 Mer. 684.