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Let us look however to illustrations: they are better adapted to this purpose than any verbal discussion, for this really seems to do nothing but mislead.

Take a fire engine for the use of a village. Does anyone doubt this is a charity? If authority can be wanted to support this assertion, we have it in the case of Sarah Zane's Will, [Magill v. Brown (1833,), Brightley's (Pa.) Rep. 346, in U. S. Circ. Ct., E. Dist. Pa.] the most remarkable decision ever made in Pennsylvania. Not because it decided this point of law, but because of the trouble taken to demonstrate that such a devise was valid, though there was no person appointed to carry it out and it was impossible to exist without such a person, which involves the very essence of the most important peculiarity of the law of charitable uses.

Suppose this engine company were founded and maintained by subscription of the villagers? Does it require reasoning to show that the object, or subject, that is, the engine and hose and the house to keep them in, is not changed in its legal character by proof of the sources from which the property came into being? It is difficult to believe that anyone can discern a distinction in respect of the qualities or incidents of property, between that which is bought by an executor in pursuance of a testamentary direction, and what is bought with gifts by living men. I mean the incidents of the property, after it is bought, paid for and vested in trustees. But, in Boyd v. Patrol, the Court below (the majority, I mean) evidently thought that the motive for the gift, changed the character of the property when it was bought. And if it could be shown that the motive of the contributors was self-protection, the property that was to be used for that purpose was not a charitable use. That is, a school, a church, a hospital, an almshouse, endowed and maintained by gifts or contributions, does not become a charity, if the motives of the givers were selfish or vicious; or ceases to be a charity when the motives of the founders can be ascertained to have been selfish.

Singular specimen of reasoning certainly, if the process can deserve that epithet. One would have supposed that the pertinent question that presented itself would be, If these are not charities, because of this vice in their origin, in whom is the

itle vested? When I have ascertained there is a trustee, I must also find a cestui que trust, or what follows? Can there be a trustee and no cestui que trust, and if there is no charity, who is the beneficial owner of the hospital?

We have had recently in Philadelphia, a memorable instance of the misapprehension that exists on the subject of property dedicated to charitable uses. Attorney General v. Pauline Home, CP. No. 2, (December 2, 1889). A charity was founded to remove children from the evils of the almshouses. The legisature, by prohibiting the maintenance of children in almshouses, nade the particular form of the charity useless. The corporation dissolved and the question was, what was to be done with the proceeds of the property, a lot of ground intended for an asylum? The donors were shocked to find they had 10thing to do with this. They were not owners and had 10 rights, except to see that the property was properly applied. It is surprising how incapable many not unintelligent persons are of comprehending, that, after donation perfected, they have 10 more right in the property than a seller after he has been paid; hat their right is that of a founder, and that right is confined o the enforcement of the trust.

To the lawyer, this is the explanation of the somewhat starting proposition, that in charities there is no resulting trust or use. The donor does not create a base fee by the gift. The ɔbjects of charity cannot fail. The poor ye have always with


The whole mystery of this branch of the law, lies just here. It was the recognition, by courts of equity, of the capacity to give ownership to a class such as the poor, the blind, and the like, that constitutes the whole of that anomaly, the law of charitable uses, one of the most remarkable specimens of judicial legislation that we possess, if only we can read the statutes, which it is evidently very difficult to do, for they consist of the judgments of chancellors.

Recurring to the principal case; if the Court had looked at the judgment of their predecessor, Judge KING, in Thomas v. Ellmaker 1 Pars. Sel. Eq. Ca. (Pa.) 98, they would have seen that this definition was unknown to him. For no one could possibly be ignorant that the foundation there, came from subscriptions, and

no one can question that the necessity of a Fire Department to the safety of the contributors' property, was the motive fo: contributing.

It was a great compliment to Mr. Binney that a brillian rhetorical sentence of his argument, was treated as a complete definition that excluded all other elements: but one cannot say as much for those who rested on such a foundation. It is the absence of selfishness, no doubt, that is necessary to a charity but only in this, that no particular person can have private property in the thing, or derive profit, otherwise than as one of the public, until selected as the beneficiary. For such an interest, when vested in third persons, is fatal to a charity, whether they be children, or strangers to the giver.

The selfish element is fatal, if connected with the enjoyment, for the property then becomes private property and ceases to be charitable. But in the creation of a charity, the motive of the founder has nothing to do with the question, any more than it has to do with the incidents of any other estate, after it is created.

What is more to the purpose would be to look to the point before the Court in the Girard Will Case, and note that the point of Mr. Binney's sentence was not in the case before the Court. Certain property had been devised to the City of Philadelphia in trust for certain purposes. Was the devise void? The only objection, bearing upon the present question, was, that being a charity it was void for want of a trustee, the corporation being incompetent to act. The quoted sentence, therefore, had nothing to do with the case. The real point, and it was the only one about which a difficulty existed, was, that it is quite immaterial whether there was a trustee or not, for equity would always supply that deficiency. The reason why the argument took such a wide scope, was, that two of the most eminent of the American Courts, misled by a dictum of Lord LOUGHBOROUGH, had fallen into the error of supposing that this jurisdiction to thus aid a trust, if it was a charitable one, depended on the statute of Elizabeth, and this statute was not in force in Pennsylvania. Judge STORY had committed himself to this view, by his note printed in Wheaton's Reports, and the Chief Justice had argued one of the cases I have mentioned. The point was, therefore, a most perilous one, requir

ing two of the most influential members of the Court to acknowledge an error, though at the present time and with our lights, it is one most difficult to conceive to have been a possible one. They, however, did not hesitate to do so.

But as bearing on the present subject it will be observed, Mr. Girard's motives were not put in issue, so that the motives of the giver had nothing to do with the case; the plaintiff's case conceded the gift was a charity, it was the basis of their argument.

It is not a little surprising that so singular a view of the law of charity should have been entertained in Pennsylvania, when we have a very conspicuous illustration of the precise reverse, being the rule in the case of the Philadelphia Library [Donohugh's Appeal (1876), 86 Pa. 306], where the contributions are assessments on stockholders, who thereby pay for the use of the books. The test put there, by counsel, was: Could the stockholders elect to sell out and divide the accumulations. intended for the public posterity? The converse is found in Babb v. Reed (1835), 5 Rawle (Pa.) 151—and the definition of SERGEANT, J., in that case, avoids everything like what Mr. Binney's definition assumed. No one will dispute its superiority, for accuracy. Its positive and negative are almost perfect. Mutual benevolence is not charity; and why? Its mutuality is fatal, but it is in the receiver and not in the giver.

But there is something deeper still that deserves notice; its consequences seem to have been overlooked. Charity has introduced a new law of property: it, and it only, can validate a gift when there is no person that has or ever can have any beneficial interest. The importance of this is obvious.

In fact, it is the purpose or object to which the property is to be applied that is the test. Gifts for any legal public, or general purpose, as Sir JOHN LEACH said, are charities, provided they do not come from a duty imposed on the donor. Hence taxes are not charitable funds, because compulsory, but money to be used as taxes, and in reduction of the burdens is a charity.


The next branch of criticism deserves more consideration, and the subject is extremely important and interesting.

The apparent and possibly real differences of opinion in the men whose judgments are cited, certainly deserve attention. One, the Rhode Island Case [Glavin v. R .I. Hospital, 1879, 12 R. I. 411], goes to the length of the judgment of Allison, P. J. [in the court below in the Pennsylvania Case], which was reversed. Nothing approaching to this is to be found in the English Cases. The nearest thing to it is found in the dicta of Lord WESTBURY in Mersey Docks Trustees v. Gibbs (1866), L. R. 1 H. L. 126. Anything more misleading I cannot imagine, than putting, as he there did as an analogy, the liability of trust funds to be lost by the act of the trustee, and the liability of the trust funds for the act of the trustee. In the former, the loss only occurs because the trust was not known. Had there been notice of the trust, the loss could not have been incurred. How in the world does this tend to show liability of the trust funds as such for the act of the trustee? The inference is directly the other way. Certainly such a slip as this is very unusual over there. The fact that Lord WENSLEYDALE assented to the liability solely on the ground of precedent, and the candid statement of M. J. BRETT of the conflict of authorities or dicta deserving consideration, shows that the question is extremely difficult and delicate, but I doubt if it ever occurred to any English lawyer to extend the doctrine of respondeat superior as the Rhode Island Case, and the case in our Common Pleas did. They shock common sense.

It has considerable bearing on this question, which is, when does the doctrine apply, and above all when is it that trust property is legally made liable to pay the damages for the wrongful act of the trustee or his servant, when the property belongs neither to the wrongdoer nor his master, but to a class that have not done the wrong nor employed the person that did it? I say it has a bearing on this question if we start with the fact that Respondeat Superior, as we understand it, is probably a piece of local English law.

I do not propose to investigate this question and therefore will do no more than point to three things I have stumbled on that are sufficient to prove to any mind this to be the fact.

(1.) In Broom's Maxims, there is not under this head, an

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