PREFACE. It was the Author's intention, that the present work should have been accompanied with a preliminary dissertation upon the Civil and Canon Laws, as they respectively bear on the subject of charitable donations. Some inquiry of that sort seemed proper, if not for the purpose of conveying an accurate understanding respecting this branch of English law, at all events with a view to a more systematic mode of dealing with the subject. It is observable, that notwithstanding the famous declaration of the BaronsNolumus leges Angliæ mutari-the Legislature, and more particularly the Judges of the land, have never hesitated to draw from the Justinian Code such maxims and precepts as appeared calculated to supply deficiencies, or suggest improvements in the laws of their country. Although the proposal of the clergy wholly to supplant the laws of England was repudiated with disdain, yet there was no desire to reject the lights which the civil law afforded for the purpose of amelioration. In no one instance have we drawn so largely upon that code as in the case of Charities. The cy pres doctrine, which forms by far the most important feature in the following Treatise, is derived exclusively from that source. It would seem to result therefore, that in particular instances a reference to the civil law would be highly desirable. Neither could the canon laws have been passed over, constituting as they do the connecting link, as it were, between the systems of Rome and England, and containing numerous provisions in relation to pious and charitable donations. The author had made some progress with the inquiry, when he found it necessary to desist from the task in consequence of his sight becoming injured. He hopes however to be able now to resume the undertaking; and if so, he will introduce the result of his labors into the subsequent volume, which it will presently be seen he contemplates laying before the profession. The following pages have principally for their subject the construction of charitable gifts, as it is that which most frequently comes under consideration, more especially with the Conveyancer. There are other matters however, which though not of such general utility, it is yet desirable should be considered. Such are the rights of visitation, the ordinary powers of disposition over charity estates, and the several remedies afforded by courts of justice for some right withheld, some wrong committed, or some requisite to be supplied. These inquiries embrace to a certain extent the jurisdiction of the Court of King's Bench by mandamus, and the several proceedings in Courts of Equity, either upon petition' or suit (particularly by way of information,) together with various incidental topics. With reference to equity proceedings in particular, it is frequently matter of difficulty to ascertain which is the proper and most advantageous course to pursue, a point which in practice will readily be acknowledged as of considerable importance. Upon this head much valuable information may be collected. The construction of charitable donations, however, is in some measure distinct, and furnishes ample matter for investigation in itself, as the size of the book sufficiently attests. The other matters referred to will be made the subject of a supplemental volume, which will shortly follow. One word with respect to the mode in which the work has been executed. It has been the writer's aim to make it what it professes to be, namely a Treatise, to which end he has endeavoured to compress his statements of the mere facts and details of cases into as narrow a compass as possible. Such statements at all can only be useful or proper, so far as they assist in elucidating the principles for which the decisions are adduced, or shew that the ground-work of the cases has been correctly understood. Throughout the whole of the work there is scarcely a single authority, either quoted or referred to, that the Author has not himself carefully examined, and for greater precaution he has in numerous instances had recourse to the Register's book, which has enabled him to correct some errors, and to supply several omissions. Occasionally, and as exceptions to the general plan, there are to be found disquisitions which run to a considerable length, and in which opinions may seem to be put forward somewhat too confidently. But as in the course of a lengthened investigation disputed points will necessarily arise, which often require to be placed in a strong light in order to be fully comprehended, no other method seemed so well calculated to clear the way to a right understanding of the subject. The writer had much rather be the means of stimulating inquiry, even at the hazard of appearing to force his arguments, than by citing cases in favor of positions which they really do not establish, or otherwise tampering with the authorities, endeavour to erect a sys tem out of materials inadequate to the purpose, a course which, however it may be sanctioned by some names of acknowledged reputation, he conceives cannot be sufficiently deprecated. At the same time he would not willingly be thought to have incurred that censure of Tully:-"Sed jurisconsulti, sive erroris objiciendi causâ, quo plura et difficiliora scire videantur; sive, quod similius veri est, ignoratione docendi (nam non solum scire aliquid artis est, sed quædam ars etiam docendi,) sæpe, quod positum est in una cognitione, id in infinita dispartiuntur." Cic. de leg. lib. 2, § 19. It may be right to add, with reference to a work embracing in great measure the same subjects of inquiry, recently published by Mr. Shelford, that the present volume was nearly completed, and a portion of it on the point of being sent to the press, at the time when that book made its appearance, and that even before its announcement considerable progress had been made. The Author takes this opportunity of expressing the obligation he is under to his friend, Mr. John Evans of Lincoln's Inn, for the kind and able assistance afforded to his former pupil in the course of the work. Having made this acknowledgment, it only remains for the writer to solicit the indulgence of an enlightened profession. 25, Old Square, Lincoln's Inn, 4th January, 1837. TABLE OF CONTENTS. A VIEW TO DETERMINE THEIR CHARACTER: CONSTRUCTION APPLICABLE TO THE FORMER; AND CHAPTER I.-Gifts which in their subject and objects are suffici- ently defined, and which, not being excepted from the b |