it could not be a charitable use. If authority was wanted upon
that subject, it would be enough, for my business to-day, to refer
to the passage cited from Duke's Exposition of the Statute of
Elizabeth." This passage which is part of Sir Francis Moore's
commentary, is as follows: "An imposition granted upon com-
modities imported or transported, to be employed upon repair
of ports or havens where they shall land, is a charitable use
and within this statute." His Lordship then proceeded thus:
"After the fire of London, when acts of Parliament imposed a
duty on coal imported into the city or the river, among other
purposes for re-building St. Paul's church (a), beyond doubt
that was a charitable use. Money given by a private donor for
repairing a church or chapel is a charitable use; and if this is
law, there is no reason why money given by the public, if it is
applied to a charitable purpose, should not be equally within
the statute of Elizabeth." And a certain drawback of the duty
having been directed by the act in favour of such poor per-
sons as were not able to pay
not able to pay the same, his Lordship
again observes-" It has been argued, that because the
poor are not to pay the duty, therefore this is not a
charitable use. I cannot accede to that inference, the poor
are not protected from payment, if they consume more than two
chaldrons of coals in a year, but on what principle is it neces-
sary that the poor should contribute, in order to render this a
charitable use?" Att. Gen. v. Brown, I Swan. 265, 297, 8. (b)
Lord Eldon's decision has since been followed by Sir John
Leach, V. C., in a case where there was an enclosure of a com-
mon, under an act passed with the consent of the Lords and pro-ret

(a) 19 Car. 2, c. 3; 22 Car.2, c. 11; 1 Jac. 2, c. 15; 8 W. 3, c. 14; 1 Ann, st. 2, c. 12; 9 Ann, c. 22.

(b) There was an appeal from the decision in Att. Gen. v. Brown, suggested in fact by the Lord Chancellor himself, but it was afterwards compromised, the relator consenting that the information should be dismissed on payment of costs as between attorney and client.

See Report, p. 308. Besides the
main point noticed in the text, one
material question in the case re-
lated to an alleged want of parties,
upon which the Chancellor fluc-
tuated in opinion, though he finally
held that the objection in that re-
spect was untenable. See pp. 293,
298, 299, 306. This no doubt af-
forded the parties an additional in-
ducement to appeal.

Enclosure of

common for

widening and regulating the

town.

Observations upon the case

prietors; the rents and profits of the land enclosed, after setting out highways and making certain allotments, being applicable in the hands of commissioners, for the purpose of widening, paving, lighting, watching, cleansing, and regulating the streets of a town; supplying it with water, and fire engines, also with hackney coaches and chairs; and any insufficiency of the rents for those purposes was to be made up by a rate or assessment, not exceeding a prescribed limit, upon the inhabitants; while, in case of a surplus, the same was to be paid over to the overseers of the poor, to be by them applied in the same manner as rates for relief of the poor within the town. In this case it was again made a question whether the funds raised pursuant to the act were charitable funds. Upon this point Sir John Leach thus delivered himself: "I am of opinion that funds supplied from the gift of the crown, or from the gift of the legislature, or from private gift, for any legal, public, or general purpose, are charitable funds to be administered by courts of equity. It is not material that the particular public or general purpose is not comprised in the statute of Elizabeth, all other legal, public, or general purposes being within the equity of that statute." And after instancing two or three cases which have been already noticed, he continues: "I am of opinion that it is the source from whence the funds are derived, and not the mere purpose to which they are dedicated, which constitutes the use charitable ; and that funds derived from the gift of the crown, or the gift of the legislature, or from private gift, for paving, lighting, cleansing, and improving a town are, within the equity of the statute of Elizabeth, charitable funds to be administered by this court. But where an act of parliament passes for paving, lighting, cleansing, and improving a town, to be paid for wholly by rates, or assessments to be levied upon the inhabitants of that town, the funds so raised, being in no sense derived from bounty or charity in the most extensive sense of that word, are not charitable funds to be administered by this court; Att. Gen. v. Heelis, 2 Sim. & Stu. 67, 76, 77.

With reference to the passage last quoted from the Vice Chancellor's judgment it is necessary to say a few words. His

Heelis.

Honor, apparently, did not mean to deny that the intended ap- of Att. Gen. v. plication of the funds was an immaterial circumstance, or was never to form an ingredient in the consideration of the subject; but only that the source or origin, from which the funds are to be supplied, constitutes the chief element in the scale, and which in those cases, where the purpose is not in itself charitable, must alone decide the question. He appears however to have been of opinion, that although the circumstance of the funds being derived from the crown, the legislature, or private individuals would be fully sufficient to attract the statute, yet that the single circumstance of the destination of those funds being to purposes which might be called charitable, would not be so. Upon a correct notion in this particular it depends, whether the words "improving a town" are to be understood as extending to every act which that term imports, or only to such acts as are ejusdem generis with those previously mentioned, as paving, lighting, and cleansing. The destination of the money certainly entered very largely into Lord Eldon's consideration of the matter. In the case of Att. Gen. v. Brown, the rate or assessment, it is true, was expressly imposed on all the king's subjects resorting to the town by land or sea, for the purpose of trading in the article subjected to duty. For this reason however that duty might eventually fall on the inhabitants, who would reimburse it to the importer in the price of the commodity, (a) every one of the king's subjects was considered as having a right in some court to insist that such a duty should not be levied, except in conformity with the provisions of the act; and from the same circumstance the public, and in right of the public the crown, were considered to have that description of interest if the duties should be improperly levied, (b) or if properly levied should be improperly applied,

(a) This is far from being strictly accurate, yet being sufficiently so for the present purpose, it seems better, in adopting the expression, to refrain from entering into a discussion which would be foreign to the plan of this work.

(b) This could have been tried in an action of replevin; but the due application of the money could only be inquired into in a Court of Equity, a point which was looked upon as one of great importance in the case. 1 Swanst. 296.

Water rate granted by par liament to the corporation of a city.

which the Attorney General was entitled to protect. See 1 Swan. 295, 296. At the same time it can hardly, after an attentive perusal of the whole of that case, be said with any confidence that, had there simply been a direct assessment on the inhabitants, the purpose, to which the funds were destined, would not alone have been sufficient to communicate to such assessment a charitable complexion. Following up this view of the subject, let us take the case of a direct assessment applicable,-not for a purpose which respects the mere internal regulation and good order of a town, as to which the inhabitants, both as regards themselves and the public, may be thought specially bound to make provision, but for a purpose which, though in its origin of a less obligatory or essential character, equally embraces all persons within the sphere of its influence; as for instance some such purpose as has been previously mentioned, viz., the establishment of a life-boat or of any public institution, to which every one, without reference to local situation, has under due restriction right of access. In either case the advantages would be open to the public in general: but in the first it may be said that all persons, in their several vicinities, are contributors to the same general object, though not to the same identical fund or towards the same specific appropriation; whilst in the second it may be considered, and possibly was so intended by the Vice Chancellor, that the rate, though imposed on the inhabitants only of a particular district or town, is yet a gift, and of course in this instance the gift of parliament. Such a rate would seem expressly to come within Lord Eldon's definition above quoted, as the money thereby collected may be said to be "money given by the public," (or which appears to be the same thing a portion of the public) "to charitable purposes.' Whether indeed the universality of benefit or enjoyment, hitherto conceded, be essential to the object under consideration may perhaps be a question; and the point, though not very likely to occur, is open for future decision.

The remarks made by Sir John Leach, understood in the sense which has here been given to them, derive considerable sanction from a case, which was brought from the Court of

Chancery in Ireland before the House of Lords. The facts were these:-The Corporation of Dublin, having before the year 1777, supplied water to the inhabitants of the city from works which they had constructed, but the rents which they received being inadequate to the maintenance of the water works, by an Irish act, the 15 and 16 Geo. 3, the owners or occupiers of houses were compelled to provide branch-pipes from the mains of the Company to their houses, and the corporation were empowered to charge the owners or occupiers with certain fixed annual rates or rents, in order to construct new mains and extend their works, to borrow money for those purposes, and to mortgage the rates for the repayment of the sums borrowed. Throughout the observations of Lord Redesdale, and also in the little which fell from Lord Eldon, it was rather assumed that the use was not charitable, for the whole argument of both the noble Lords turned upon the jurisdiction of the Court of Chancery in matters of account generally, putting charity altogether out of the question. Lord Eldon previously in Att. Gen. v. Brown, had thrown out incidentally, that it was not necessary that there should be a charitable use to give the Court jurisdiction over the subject of that case, a proposition which was somewhat disapproved of by Sir John Leach in Att. Gen. v. Heelis. With these conflicting opinions it was considered advisable in the case now before us, to enter upon the question at length, when the view which had been taken by Lord Eldon was fully confirmed and established. Under these circumstances, the case seems to be an authority which negatives the idea of charity. Att. Gen. v. Mayor, &c. of Dublin, 1 Bligh, N. R. 312.

But one other description of gift remains to be noticed, that which has for its object the liquidation of the national debt. In the celebrated Thelusson case, the ultimate limitation of the several estates, devised or directed to be purchased, was to the trustees of the will upon trust for sale, the proceeds arising therefrom being directed "to be paid to his Majesty, his heirs and successors, kings or queens of England, to the use of the

Gifts towards

payment of the

national debt.