to the heirs and assigns of Ralph Clavering. In 1816, Jasper Gibson, the then owner, conveyed the land to trustees for sale; and in 1822 it was bought by the defendants' testator, John Todd, at a public sale; it was described in the printed particulars as being "subject to a rent-charge of 321. a year." Up to the time of this purchase the 101. a year were regularly distributed among the poor. On the 22nd of September, 1830, John Todd died, having made the defendants his executors, and having devised the land so purchased to one of them. Neither the testator nor the defendants ever paid any part of the 201. annuity secured to the priest, from the period of the purchase. An information was filed on the 5th of September, 1831, against Edward Clavering, heir of the original trustee of the rent-charge, but the rentcharge having been previously assigned to the defendant Lead bitter, the information was amended on the 11th of January, 1833, by substituting his name in the place of Clavering's. Between these dates the 2 & 3 Will. IV. c. 115 had passed; and the only question raised by the counsel for the trustee of the rent-charge was, whether the information could be said to have put the matter in litigation before the passing of the act, within the meaning of the 3rd section? Lord Langdale said, that it was impossible for him "to consider that this suit was not commenced, and that this rent-charge, as against the property charged with it, and the persons liable to pay it, was not in litigation, discussion, and dispute, at the time when the statute was passed." The case was therefore to be determined as if that act had not passed. Before that act" there could, I apprehend, be no doubt that the proposed mode of carrying the charitable intention into effect was illegal, and the crown would have been entitled, under the king's sign manual, to direct the application of the fund to other charities in a legal mode." His lordship decided according to that view of the case. Indeed the endowment was already vested in the crown for public purposes, by the operation of the 1 Geo. I.

st. 2, c. 50. That point, however, was not raised on this occasion; and the decision rested on no other grounds than those already stated. It is, therefore, not very easy to be reconciled with principle. It is to be regretted that the attention of the court was not directed to the 10 Geo. IV. c. 7, and its operation on the old law of superstitious uses. No doubt, under the old law," the proposed mode of carrying the charitable intention into effect was illegal," but only on the ground of a supposed public policy, gathered by a necessary presumption from the general scope and tenor of our former legislation. The last Relief Act was passed in derogation to the enactments that had furnished that presumption;-and, containing no reservation whatever in its favour, must be taken to have rebutted it. In other words, the 10 Geo. IV. c. 7 relieved her majesty's Roman Catholic subjects from disabilities, presumed to have been necessarily intended by former acts, when it relieved them from such as were inflicted by the acts themselves on which such presumption was based. What Lord Mansfield is reported to have said of the Dissenters' Toleration Act is equally true of this (h). It has put the religion it protects, "not merely under the connivance, but under the protection of the law, has established it." Roman Catholics, "therefore, are restored to a legal consideration and capacity." Yet if this construction be true, it is impossible to contend that the cases of West v. Shuttleworth, and The AttorneyGeneral v. Todd, ought to be considered law. But on the other hand, it is quite clear that, whatever the case may be with endowments of a date subsequent to the passing of the acts for the confiscation of the like, those enactments are still in force as far as respects anterior endowments. This principle has been very distinctly recognised in the late case of The Attorney-General v. The Fishmongers' Company, decided by Lord Langdale, M. R. (i).

(h) Evans v. The Chamberlain of London, 2 Burn, Eccl. Law, 207. And see Harrison v. Evans, 6 Bro,

P. C. 181, (in Error).
(i) 2 Beav. 168.

Mortmain.

By the 5th section of the 2 & 3 Will. IV. c. 115, all property to be acquired or held under the authority of that act, for Roman Catholic purposes, shall be subject to the provisions of the last Mortmain Act (9 Geo. II. c. 36). Under the last mentioned enactment, no hereditaments, corporeal or incorporeal, nor personal estate to be laid out or disposed of in the purchase of lands, tenements, or hereditaments, shall be any ways conveyed or settled, charged or incumbered, by any person or persons, for the benefit of charitable uses; unless by deed indented, executed in the presence of two credible witnesses, twelve calendar months at least before the donor's or grantor's death (both inclusive), and enrolled in Chancery within six calendar months after execution ;-(or, in the case of public stocks to be applied in the purchase of lands, &c., by transfer in the public books, six calendar months before the donor's or grantor's death, both inclusive;) unless the charitable use be made to take effect in possession without any power of revocation, reservation, trust, condition, limitation, clause, or agreement for the donor's or grantor's benefit, or of persons claiming under him, (s. 1). If the founder, however, merely reserve to himself the power of regulating the charity, this will not make the deed void (k). But (s. 2) these restrictions as to the twelve calendar months before execution of deeds, and of six calendar months before transfer of stock, shall not extend to bonâ fide purchases for a full and valuable consideration, actually paid at or before the time of conveyance or transfer. The restriction as to the mode of execution and enrolment, however, is not removed by this clause. But the 9 Geo. IV. c. 85 declares valid all such purchases, previous to that act, although the requisite formalities might not have been observed. It does not extend, however, to any deeds or assurances at that

(k) Grieves v. Case, 2 Cox, 301.

time in litigation, nor to any which have been made after the passing of the act. But by a subsequent enactment (4 & 5 Vict. c. 38, s. 16), all conveyances for educational purposes, made previous to that act, and for valuable consideration, but not enrolled as required by the 9 Geo. II. c. 36, shall nevertheless remain valid until the 21st of June, 1842, and, if enrolled before that day, shall continue to be valid for ever after. But deeds already avoided at law or in equity are not to be affected by that enactment.

All other gifts made otherwise than as directed by the 9 Geo. II. c. 36, s. 1, excepting gifts to the universities of Oxford and Cambridge, or to the colleges of Eton, Winchester, and Westminster (s. 4), are declared to be absolutely null and void, (s. 3). They are avoided, however, in favour not of the crown, but of the heirat-law (1).

The 4 & 5 Vict. c. 38, was passed for affording further facilities for the conveyance and endowment of sites for schools. By section 2 to section 9 inclusively, any persons seised in fee, in tail, or for life, of freeholds or copyholds, and having the beneficial interest in their seisin,—or their representatives in certain cases of disability,-any corporations, officers, justices, trustees, or commissioners holding land for public or charitable objects,-the chancellor of the Duchy of Lancaster,-and the officers of the Duchy of Cornwall,-are empowered to grant, convey, or enfranchise, by way of gift, sale, or exchange, any quantity of land as sites for schools for education of poor persons, or for residences of their schoolmasters or mistresses, or otherwise, for their education in religious and useful knowledge. But the site of each school and residence must not exceed the extent of one acre, and no more than one such site must be in each parish. Upon their ceasing to be held for their original purposes, the sites are, in certain cases, to revert to the estate of which

(1) Corbyn v. French, 4 Ves. 433.

K

they were parcel before such conveyance. But the trustees are empowered by the 14th section to sell or exchange any site for a more eligible one, with the consent of the proper authorities. No bargain and sale, nor livery of seisin,-nor, it should seem, any enrolment,-will be requisite to give effect to conveyances under this act; of which conveyances a short form is given in the 10th section. And only one witness to the execution by each party is required.

Besides the general provisions of the Mortmain Acts, Roman Catholic foundations are also considerably affected by an act of Henry the Eighth's reign for the better protection of feudal rights, but certainly not out of any regard to the ecclesiastical policy of that period, nor with any hostile feeling to superstitious uses as such, notwithstanding the extra-judicial dictum to the contrary of Mr. J. Abbott (m). The 23 Hen. VIII. c. 10 is intituled, "An Act for Feoffments and Assurances of Lands and Tenements made to the Use of any Parish Church, Chapel, or such like." It recites the recent growth of the same losses and inconveniences to the king and other lords and subjects of the realm as by alienations in mortmain, from the practice of conveying or devising real estate to the use of, or in trust for, churches, &c. "guilds, fraternities, commonalties, companies, or brotherheads, erected and made of devotion, or by common assent of the people without any corporation," or "to have obites perpetual, or a continual service of a priest for ever, or for threescore, or fourscore years." All such uses, intents, and purposes, and all collateral assurances in fraud of the statute, are, by the 2nd and 4th sections, declared to be utterly void, and of no strength, virtue, nor effect. The heirs-at-law, and not the crown, will therefore be entitled.

Ancient customs to devise in mortmain within cities and towns corporate, are reserved from the operation of this act by the 5th section, and two cases then pending

(m) Doe dem. Wellard v. Hawthorn, 2 B. & A. 103.