from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting and maintaining public buildings or works, or otherwise lessening the burdens of government." "And," he adds, "it is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature." A religious purpose is a charitable purpose. Baker v. Sutton, 1 Keen, 224. And a general purpose of promoting Christian knowledge is a good charitable purpose. Att'y-Gen. v. Stepney, 10 Ves. 22.

In Townsend v. Carus, 3 Hare 257, a legacy to trustees upon trust to pay, divide or dispose thereof unto or for the benefit or advancement of such societies, subscriptions or purposes having regard to the glory of God in the spiritual welfare of His creatures, as they should in their discretion see fit, was construed to be a gift for religious purposes, and restricted to such purposes; and it was held, also, that a bequest for a religious purpose is a valid charitable bequest, although the paramount religious object might be possibly effected by an application of part of the fund to a purpose which, separately taken, would not be strictly charitable. And in Wilkinson v. Lindgren, L. R. 5 Ch. Ap. 570, where a testatrix, after giving legacies to certain designated charitable institutions, gave her residuary personal estate to and amongst the different institutions, or to any other religious institutions or purposes, as A and B might think proper, it was held that the bequest of the residue was a good charitable gift, and not void for uncertainty. Gifts for domestic and foreign missions are charitable. Perry on Trusts, § 701; Burr v. Smith, 7 Vermont, 241; Boyle on Charities,41; Shelford on Charitable Uses, 73. And so are gifts for educational purposes.

It is argued, however, in this case, that the gift in question can not be maintained as a charity, because the trust is for benevolent as well as for missionary and educational purposes; and it is urged that the doctrine of the case of Norris v. Thompson's ex'rs, 4 C. E. Gr. 308, s. c. on Appeal, 5 C. E. Gr. 489, is conclusive on this point. The principle on which the decision in that case and those on which it rests, are founded is, that where a trust is in such general terms that the fund may be applied at the discretion of the trustees, not only to purposes strictly charitable according to the settled meaning of the term, but, also, to other indefinite purposes of benevolence or liberality, it is void for the reason that the court can not direct the application of any part to charitable uses against the terms of the trust giving an option to the trustees to apply it wholly to other purposes of a different kind. If the character of the gift, however, can be definitely determined, and it appears that it is charitable in the legal sense, the use of terms which would, if unexplained, render the gift void, will not defeat the donor's purpose. As, for example, if a gift were to objects of "liberality" to be mentioned in a codicil to the will, and the objects designated in the codicil were in all respects legal charities, the gift would be good as a charitable gift. Obviously the intention of

the donor is of great importance in determining the character of such a trust. "If the intention be charity," says Lord Brougham, "the court will execute it, however vaguely the donor may have indicated his purpose. But mere purposes of a kind generally beneficial, as of those of benevolence and liberality, without specifying the objects who are to receive, and those objects not being the poor, the court will never attempt to execute." Att'y-Gen. v. Haberdashers Co., 1 Myl. & K. 420.

"I agree," said Lord Eldon, in Morice v. Bishop of Durham, 10 Ves. 522, 542, 543, "there is no magic in words, and if the real meaning of these words (benevolence and liberality) is charity or charitable purposes according to the technical sense in which these words are used in this court, all the consequences follow." In Attorney-General v. Comber, 2 Sim. & Stu. 93, a gift to the widows and orphans of a parish was declared by Sir John Leach, V. C., to be intended for the poor of those two classes of the parish, on the ground that they are within the scope of general benevolence, to which sentiment the gift was to be attributed. In Jemmit v. Verril, Amb. 585, note, where the residue was given to trustees upon trust to pay, apply and dispose of the same unto and for such charitable and benevolent purposes as G. J., one of the trustees, should direct, it was ordered by the same judge, notwithstanding the fact that the word "benevolent" was used in the description of the purposes to which it was to be applied, that the residue should be applied as G. J. should point out by a scheme to be laid before and settled by the master. In Dolan v. Macdermot, L. R. 3 Ch. Ap. 676, a gift for such charities and public purposes as lawfully might be in the parish of T. was held to be a good charitable gift, the court holding that the testator, by the word "charities," meant public and not private charities, and that by "public purposes" he meant public purposes ejusdem generis, i. e., public charities of a kind which, though within the statute of Elizabeth, and the technical doctrine of the court with regard to charities, are not within the popular meaning of the word charities.

On the other hand, in Williams v. Kershaw, reported in 5 Cl. & Fin. 111, note, a direction by a testator to his trustees to apply the residue of his personal estate to and for such benevolent, charitable and religious purposes as they in their discretion should think most advantageous and beneficial, and for no other use, trust, intent or purpose, was held void for uncertainty. In that case, however, the master of the rolls concluded that the testator intended to restrain the discretion of the trustees only within the limits of what was benevolent, charitable or religious. In Norris v. Thompson's ex'rs, ubi sup., the doctrine of Williams v. Kershaw was followed. In Norris v. Thompson's ex'rs, however, the bequest was to such benevolent, religious, or charitable institutions as the testator's widow might select. In the present case the gift is to a church to promote its religious interests, and to aid the missionary, educational and benevolent enterprises to which it is in the habit

of contributing. The word "benevolent" in that connection signifies, and undoubtedly was understood by the testatrix to signify "charitable." The courts appear to have been in some cases astute to frustrate the charitable intentions of donors who, meaning to devote their property to uses strictly charitable, have, unfortunately, employed language admitting of a wider scope in the use of the gift than is judicially given to the word charity. It would be far more in accordance with enlightened jurisprudence to exercise in such cases the power of construction so as to effectuate, if possible, the intention of the testator. A latudinarian interpretation of the words "charity" and "charitable" has been unhesitatingly given in order to effectuate the intention of testators; why should not, for the same purpose, a restricted one be given to the words "benevolence" and "benevolent?" Why may they not be interpreted according to their popular signification, and so be held to mean just what the testator, in the great majority of cases, understands them to mean? "The main and necessary characteristic," says Lord Brougham, "is charitable intent." Attorney-General v. Haberdashers Co., ubi sup. meaning of the word "benevolent" in the bequest under consideration, is controlled by the character and purposes of the legatee, in aid of whose interests and enterprises the gift is to be employed. A gift to a charitable institution or society will be presumed to be a charitable gift, though no purpose is named, and such institution or society will be presumed to hold such gifts in trust for those charitable purposes for which it exists. Everett v. Carr, 59 Maine 325; Evangelical Association's Appeal, 35 Pa. St. 316; Burr v. Smith, 7 Verm. 241; Earle v. Wood, 8 Cush. 430; Dexter v. Gardner, 7 Allen 243; Hendrickson v. Decow, Sax. 577.

The

The gift in this case is to an incorporated religious society, expressly in trust to be used for its religious purposes. The trust expressed that the property shall be employed for the promotion of the religious interests of the church, and in aid of the educational, missionary and benevolent enterprises to which it is in the habit of contributing, is no more than the law would imply had the terms of the gift been merely in trust for the purposes of the church. In such case the employment of the fund in aid of the missionary, educational and benevolent enterprises to which the church is in the habit of contributing could not be held to be a misapplication. A gift to a hospital or a college to aid it in its "benevolent" objects, would undoubtedly be a gift to a charitable use, and would be unhesitatingly pronounced to be so. The word "benevolent" would be interpreted to mean charitable. A gift to a missionary society to aid it in its "benevolent " enterprises would, in like manner, be readily conceded to be to a charitable use, and the word "benevolent" would there be held to signify charitable. So, too, when the gift is to a church to promote its religious interests, and to aid it in the missionary, educational and benevolent enterprises to which it is accustomed to contribute, the word "benevolent" should, if there be necessity for so doing in order to effectuate the

donor's intention, be interpreted in the narrow sense in which it was used by him-i. e., as being equivalent to or synonymous with the word "charitable." The word "benevolent," in the case under consideration, should be interpreted according to the context in conformity with the construction adopted in Jemmit v. Verril, Wilkinson v. Lindgren, and Townsend v. Carus. It is worthy of observation that it is joined to the words "missionary and educational" by the copulative conjunction, and, therefore, is not subject to the objection of indefiniteness, as was the bequest in Norris v. Thompson's ex'rs. There the disjunctive was employed.

Again, the purposes to which the gift is to be devoted are not uncertain, but are designated by reference in the will. They are the missionary, educational, and benevolent enterprises to which the church" is in the habit of contributing." What were those enterprises? If they are wholly such as are charitable within the legal signification of the word, the gift is good. Proof has been made of the objects to which the church was, at the time of the death of the testatrix, in the habit of contributing, and they are all charitable. They are either religious, educational, or eleemosynary.

The testatrix was a member of the North Reformed Church from September 21st, 1866, to the time of her death, in or about November, 1873. One of the witnesses testifies that from the organization of the church to the time when he was examined as a witness, which was in August, 1875, the benevolent objects to which the church was accustomed to contribute were Foreign and Domestic Missions, the Church Building Fund, the Tract Society, the Bible Society, the Sabbath Schools of the church, the Female Charitable Society, the Disabled Ministers Fund, and the Widows Fund. All these are charitable, in the legal signification of the word.

of

Another says that the objects to which the church made contributions every year, during the period of seven years from 1868 to 1875, were Foreign Missions, the Board of Publication, the Newark Female Charitable Society, the Widows' Fund, the Tract Society, Domestic Missions, the Bible Society, the Board of Education and Sabbath Schools. Both these witnesses speak from memory. It appears, however, from examination and collation of the list of the contributions for the several years, that the objects to which the church was, at the time when the will was executed, and at the time of the testatrix's death, in the habit of contributing every year, were Foreign and Domestic Missions, the Board of Publication of the Reformed Church, and the Mission Sunday Schools. No question is made as to the character of these enterprises. It is not denied that they are charitable, in the legal sense of the word. They are all charitable. The church does not appear to have been in the habit of contributing to any enterprises which were benevolent merely, in the wide sense of that term, as contra-distinguished from "charitable" in the legal acceptation. There were other objects of benevolence besides those above-mentioned, using the word "benevolence" in its pop

ular sense, to which the church from time to time contributed, and they, too, were charitable, in the legal acceptation, Those missionary, educational and benevolent enterprises to which it was in the habit of contributing were all "for education or the administration of charity to the bodies or souls of men." Without invoking the aid of the cases in which, when free from the trammels of past adjudication, a judicial construction in accordance with the obvious intention of the testator in the use of the word "benevolent " has been given, as in Miller v. Rowan, 5 Cl. & Fin. 99, where the gift was to benevolent and charitable purposes, with a recommendation to apply it in yearly payments to faithful domestic servants, and Hill v. Burns, 2 W. & S. App. 80, where the gift was to be disposed of in such charitable and benevolent purposes as one of the trustees should direct, and accepting it as a rule that the test of a charity is the ability of this court to execute it, there can be no doubt as to the trust which is now before me. Unlike the cases of Morice v. Bishop of Durham, 9 Ves. 399, 10 Ves. 522; James v. Allen, 3 Meriv. 17; Ellis v. Selby, 1 Myl & Cr. 286; Kendall v. Granger, 5 Beav. 300; Vezey v. Jamson, 1 Sim. & Stu. 69, and Norris v. Thompson's ex'rs, the intention of the testatrix as to the objects of her bounty cannot be said to be uncertain. Nor is it uncertain whether they were to be such as the law calls charitable.

The gift will be sustained. There will be a decree accordingly.

NOTE.-Devises to charities are favored, and ought to be liberally expounded. Jackson v. Phillips, 14 Allen, 539, 550, 556; Holmes v. Mead, 52 N. Y. 332, 339; Charles v. Hunnicutt, 5 Call (Va.) 311; Hadley v. Hopkins, 14 Pick. 240, 253; Zanesville Co. v. Zanesville, 20 Ohio, 483; Dickson v. Montgomery, 1 Swan (Tenn.) 348. And "determined, like all other questions of construction, by the application of the ordinary rules of interpretation to the language of each particular will." Chamberlayne v. Brockett, L. R. 8 Ch. 206, 211, Lord Selborne.

Some confusion, in regard to the power of equity over charities, has been caused by a misconstruction of 43 Eliz. ch. 4 (A. D. 1601), but the later and more satisfactory opinion is that that statute did not confer jurisdiction on the court of chancery. Perry on Trusts, § 694, note. A few other, principally later, decisions are added. Ould v. Washington Hospital, 1 MacArthur, 541 (U. S. Sup. Ct., Oct. 1877), 6 Cent. L. J. 191; State v. Griffith, 2 Del. Ch. 392; s. C., on appeal, Ib. 421; Newson v. Starke, 46 Geo. 88; Heiss v. Murphey, 40 Wis. 276; Frierson v. General Assembly, 7 Heisk. (Tenn.) 683; Meade v. Beale, Taney's C. C. Decis. 339; Board of Com'rs v. Lagrange, 55 Ind. 297. But was merely intended to classify or enumerate certain charities which were enforceable in equity. Thomson v. Norris, 5 C. E. Gr. 489, 522; Ould v. Washington Hospital, ubi supra. And to provide a new and more effectual remedy for breaches of trust in that respect. 2 Kent (12th ed.) 283, and note; Perry on Trusts, § 724, note,

That the jurisdiction of equity over charities existed prior to and independently of the 43 Eliz., see Ibid; 10 Am. Law Reg. 129, 321, 449; Wright v. Methodist Church, 1 Hoff. Ch. 202; State v. Griffith, 2 Del. Ch. 392, 421; Incorporated Society v. Richards, 1 Dr. & War. 258; Vidal v. Girard, 2 How. 127; 4 Wheat. Ap. 1. So, a defective execution of a power, in relation to such trust, will, be aided, "before, at and after the

statute of Elizabeth." Att'y-Gen. v. Tancred, 1 Eden, 10, 14; Sayer v. Sayer, 7 Hare, 377, 3 MacN. & G. 606; Perry on Trusts, § 739; see Sherman v. Dodge, 28 Vt. 26; Witman v. Lex, 17 S. & R. 92; Roberts on Frauds, 362.

In Norris v. Thomson. 4 C. E. Gr. 307, 312, it is stated by Chancellor Zabriskie that the statute of 43 Eliz. is not in force in New Jersey. In the same case on appeal, 5 C. E. Gr. 489,522, Chief Justice Beasley holds that the common law of England means "that system, so far as respects this question, which has grown up in a series of decisions founded, in part, upon the 43d of Elizabeth, ch. 4."

It is proposed to examine, in this note, whether the statute of charitable uses is in force in New Jersey. In determining this, it is necessary to consider some other English statutes, also, that have been adopted deemed in the United States.

In Blankard v. Galdy 4 Mod. 222 (A. D. 1693), the Island of Jamaica was held to be "only an assembly of people who are not bound by our laws, unless particularly mentioned." But see S. C. Salk. 411; Mem. 2 P. Wms. 75. In Smith v. Brown, Salk. 666 (A. D. 1706), "the laws of England do not extend to Virginia; being a conquered country, their law is what the king pleases." Holt, C. J. See Campbell v. Hall, Cowp. 204.

The rule that the particular colony to be affected must. be mentioned, does not apply to those general statutes which relate to the king's prerogative. McKineron v. Bliss, 31 Barb. 180.

It is doubtful whether the position taken by Blackstone (Vol. I, p. 107), that the colonies were to be deemed conquered or ceded countries, is correct. Story on Const., § 151, et seq.

The following rules seem to have been generally followed in this country:

(1.) The statute must have been adopted before the settlement of the colony. State v. Mairs, Coxe, 328, note, Kinsey, C. J.; Dalgleisch v. Grundy, Cam. & Nor. (N. C.) 22; McKee v. Straub, 2 Binn. (Pa.) 1; Patterson v. Winn, 5 Pet. 233, 241, Story, J.; Carter v. Balfour, 19 Ala. 814, 829: Commonwealth v. Lodge, 2 Gratt. (Va.) 579; Swift v. Tousey, 5 Ind. 196; see Ludlam v. Ludlam, 26 N. Y. 356, 362; Coburn v. Harvey, 18 Wis. 156; Paul v. Ball, 31 Tex. 10.

(2.) It must be applicable to our situation-e. g., the following acts do not extend: Bankruptcy acts of Englanu. Vanuxem v. Hazelhurst, 1 South. 192, 195; see Bunny v. Hart, 11 Moore, P. C. C. 189. Collateral warranties, 4 and 5, Ann, c. 16 (A. D. 1706). Eshelman v. Hoke, 2 Yeates (Pa.) 509; see Den v. Crawford, 3 Hal. 90. Benefit of Clergy. Fuller v. State, 1 Blackf. (Ind.) 63. Copyright laws, 8 Ann, c. 19 (A. D. 1710). Wheaton v. Peters, 8 Pet. 591, 660. Quia emptores, 18 Edw. I, c. 1 (A. D. 1290). Ingersoll v. Sergeant, 1 Whart. 337; Wallace v. Harmstad, 44 Pa. St. 492. "The Black Act," 9 Geo. I (A. D. 1722). State v. Campbell, Charlt. (Ga.) 166. Maintenance and champerty, 32 Hen. VIII, c. 9 (A. D. 1541). Den, Bickham v. Pissant, Coxe, 220, 223; Morris v. Vanderen, 1 Dall, 64, 67; Harring v. Barwick, 24 Ga. 59; Sessions v. Reynolds, 7 Sm. & M. (Miss.) 131; Schaferman v. O'Brien, 28 Md. 565; Cresinger v. Welsh, 15 Ohio, 156; Fetrow v. Merriwether, 53 Ill, 275; Cassedy v. Jackson, 45 Miss. 397; Duke v. Harper, 3 Cent. L. J. 288, where many cases are reviewed; 14 Am. Law Reg. 78 and note; see Gregerson v. Imlay, 4 Blatch. 503; Brinley v. Whiting, 5 Pick. 347; Earle v. Hopwood, 9 C. B. (N. S.) 566, 574, note. Mortmain, 9 Geo. II, c. 36 (A. D. 1736). Vidal v. Girard, 2 How. 189; Beall v. Fox, 4 Geo. 404; Potter v. Thornton. 7 R. I. 252; Perin v. Carey, 24 How. 465; Wright v. Trustees, etc., 1 Hoff. Ch. 202; McCartee v. Asylum, 9 Cow. 437, 451; see Schmucker v. Reel, 61 Mo. 592; Leazure

v. Hillegas, 7 Serg. & Rawle, 321. Usury laws, 37 Hen. VIII, c. 9 (A. D. 1546). Houghton v. Page, 2 N. H. 42; see Rensselaer Glass Co. v. Reid, 5 Cow. 587, 609, 635. Pauper laws. Commonwealth v. Hunt, 4 Metc. (Mass.) 111. Conspiracy, 33 Edw. I (A. D. 1305). State v. Buchanan, 5 H. & J. (Md.) 317; Commonwealth v. Hunt, 4 Metc. (Mass.) 111. Bearing arms, 2 Edw. III (A. D. 1329). Simpson v. State, 5 Yerg. (Tenn.) 356. Enrolment act, 27 Hen. VIII, c. 16 (A. D. 1536). Welsh v. Foster, 12 Mass. 93, 96; Jackson v. Dunsbogh, 1 Johns. Cas. 91 97; see Patterson v. Winn 5 Pet. 233, 241.

The following have been construed as operative:

Lex mercatoria. Ferris v. Saxton, 1 South. 1, 18; Pratt v. Eads, 1 Blackf. (Ind.) 81; Cook v. Renick, 19 Ill. 598, Nash v. Harrington, 2 Aik. (Vt.) 9; Hudson v. Mathews, Mor. (Ia.) 94; Commonwealth v. Leach, 1 Mass. 59, 61. Statute of uses, 27 Hen. VIII (A. D., 1536), 1 Greenl. Cruise 340, note; see Croxall v. Sherrerd, 5 Wall. 268, 282; Society v. Hartford, 2 Paine C. C. 536; Matthews v. Ward, 10 G. & J. (Md.) 443, 454; Thompson v. Gibson, 1 Ohio, 439. Statute of Gloucester, 5 Edw. I, c. 5 (A. D. 1278). Sackett v. Sackett, 8 Pick. 309, 312; see Moore ads. Townsend, 4 Vr. 284; Dawson v. Coffman, 28 Ind. 220. Statute of Merton, 20 Hen. III (A. D. 1236). O'Ferrall v. Simplot, 4 Iowa, 381; Hopper v. Hopper, 1 Zab. 543, 2 Zab. 715. Statute of frauds, 27 Eliz. (A. D. 1585), Cathcart v. Robinson, 5 Pet. 264; Brown v. Burke, 22 Geo. 574; Den v. DeHart, 1 Hal. 450, 457; Mayberry v. Johnson, 3 Gr. (N. J.) 116, 118; Lindsley v. Coats, 1 Ohio, 113. Contra, Cleveland v. Williams, 29 Tex. 204: see Murphey v. Hubert, 7 Barr (Pa.) 420; Blackwell v. Ovenby, 16 Ired. (N. C.) Eq. 38. Fines and common recoveries. Lyle v. Richards, 9 S. & M. (Pa.) 322; Richman v. Lippincott, 5 Dutch. 44, 50; Croxall v. Sherrerd, 5 Wall. 268, 283. Distresses, 8 Ann, c. 14 (A. D. 1710). Hamilton v. Reedy, 2 McCord (S. C.) 38; Coburn v. Harvey, 18 Wis, 156; Dalgleish v. Grundy, Cam. & Nor. (N. C.) 22; Lambert v. Dessaussure, 4 Rich. (S. C.) Law 248; In re Trim, Hughes (U. S. C. C.) 355. Damages from accidental fire, 6 Ann, c. 31 (A. D. 1708.) Kellogg v. C. & N. W. R. R. Co., 26 Wis. 223, 272; as modified by 14 Geo. III, c. 78 (A. D. 1774), Lansing v. Stone, 37 Barb. 15. Discontinuance by husband of wife's interest in lands, 32 Hen. VIII, c. 28 (A. D. 1541). Bruce v. Wood, 1 Metc. (Mass.) 542; Coale v. Barney, 1 G. & J. (Md.) 324. Westminister the Second, 13 Edw. I, c. 34 (A. D. 1285). Coggswell v. Tibbetts, 3 N, H. 41. Contra, Lecompte v. Wash, 9 Mo. 551. Jointure, 27 Hen. VIII, c. 10 (A. D. 1536). Hastings v. Dickenson, 7 Mass, 153. Attornment, 4 Ann, c. 16 (A. D. 1706). Burden v. Thayer, 3 Metc. 76; Coker v. Pearsall, 6 Ala. 542; see Baldwin v. Walker, 21 Conn. 168.

(3.) In aid or amendment of the common law. Commonwealth v. Leach, 1 Mass. 58, 61; Pearce v. Atwood, 13 Mass. 324, 354; Commonwealth v. Knowlton, 2 Mass. 530, 535: Boynton v. Rees, 9 Pick. 528, 531; Hamilton v. Kneeland, 1 Nev. 40; Gwin v. Hubbard, 3 Blackf. (Ind.) 14; see Scott v. Lunt, 7 Pet. 596. As giving additional remedy, 13 Edw. I, c. 11 (A. D. 1285). Shewell v. Fell, 3 Yeates (Pa.) 17; Gwin v. Hubbard, 3 Blackf. (Ind.) 13; Plumleigh v. Cook, 13 Ill. 669; see Steere v. Field, 4 Mason 486, 511. As an action of account, 4 Ann, c. 16 (A. D. 1706). Griffith v. Willing, 3 Binn. (Pa.) 317.

(4.) Or declaratory thereof. Lynch v. Clark, 1 Sandf. Ch. (N. Y.) 583; Hudnal v. Wilder, 4 McCord (S. C.) 294; Hamilton v. Russel, 1 Cranch 310, 316; State v. Hudson Co., 1 Vr. 130, 131.

(5.) Or merely cumulative. Goodwin v. Thompson, 2 Greene (Ia.) 329; Commonwealth v. Ruggles, 10 Mass. 391; see Commonwealth v. English, 2 Bibb (Ky) 80. (6.) All statutes for the administration of justice were adopted, Sibley v. Williams, 3 G. & J. (Md.) 52;

Pemble v. Clifford, 2 McCord (S. C.) 31: Craft v. State Bank, 7 Ind. 219. "Ease and favor," 23 Hen. VI, c. 9 (A. D. 1445); Koons v. Seward, 8 Watts (Pa.) 388; see Winthrop v. Dockendorf, 3 Me. 156, 161. Additions to names of defendants in indictments, 1 Hen. V, c. 5 (A. D. 1413). Commonwealth v. France, 2 Brewst. (Pa.) 568. Limitations of actions, 21 Jac. I, c. 16 (A. D. 1624) does not extend bere. Den, Bickham v. Pissant, Coxe 220; Den, Jackson v. Morris, 2 Hal. 6 11; Den, Gardner v. Sharp, 4 Wash. C. C. 609; Morris v. Vanderen, 1 Dall. 64; Boehm v. Engle, 1 Dall. 15. Contra, Calvert v. Eden. 2 H. & McH. (Md.) 290; Bogardus v. Trinity Church, 4 Paige 178, 198. Costs, 6 Edw. I, c. 1 (A. D. 1278). See Aller v. Shurts, 2 Harr. 188. Bills of exceptions, 13 Edw. I, c. 31 (A. D. 1285). See Colley v. Merrill, 6 Me. 50.

The construction of an English statute is adopted with it. Brown v. Burke, 22 Geo. 574; Fowler v. Stoneum, 11 Tex. 478. As far as the revolution. Cathcart v. Robinson, 5 Pet. 264, 280.

Decisions as to charities are independent of 43 Eliz., and therefore applicable in Pennsylvania. Witman v. Lex, 17 S. & R. 88, 92, Gibson, C. J.

No decisions rendered after July 4th, 1776, are admi -sible as authority in New Jersey. Pat. 436, § 5 (repealed Rev. Laws 1821, p. 726); Crawford v. The Wm. Penn, 3 Wash. C. C. 484, 492; see Hickman v. Boffman, Hardin (Ky.) 348, 365.

As to the effect of a general repealer. The constitution of New Jersey of 1776, § 22, provides that the common law of England, as well as so much of the statute law as has been heretofore practiced in the colony, shall still remain in force till altered by the legislature, etc.

Paterson's Rev. (A. D. 1799), p. 436, § 4, and Rev. Laws 1821, p. 726, provide that "no statute or act of parliament of England or Great Britain shall have force or authority within this state, or be considered as a law thereof." (Neither P. L. 1819, p. 25, nor Rev. Laws 1821, p. 726, § 5, repeals this section.)

The reason of this sweeping repealer is, no doubt, correctly stated by Mr. Griffith, that Paterson's Rev. contained all such of the English statutes as were supposed to be in force in 1776, 4 Grif. Reg. 1155, note.

Under this the following English statutes, among others, have been abolished: Fines and recoveries, Croxall v. Sherrerd, 5 Wall, 268, 283; the statute de donis (13 Edw. I, A. D. 1285), Den, James v. Dubois, 1 Harr. 285; and the statute of 21 Hen. VIII, c. 4 (A. D. 1530), Corlies v. Little, 2 Gr. 373, 385. The statute of uses, 21 Hen. VIII, c. 4 (A. D. 1530), was abrogated by a similar general repeater in Michigan. Trask v. Green, 9 Mich. 358; Ready v. Kearsley, 14 Mich, 215. Also in New York, 11 and 12 Wm. III, c. 6 (A. D. 1700), Levy v. McCartee, 6 Pet, 102, 110, Story, J.; but statutes (6 Ann., 31 and 14 Geo. III) which have been rec ognized as part of the common law, were held not to be affected. Lansing v. Stone, 37 Barb. 15, 19. For other constructions of similar provisions, see Noonan v. State, 1 Sm. & Marsh (Miss.) 562; State v. Rollins, 8 N. H. 550; Helfenstine v. Garrard, 7 Ohio, 397; Gorham v. Daniels, 23 Vt. 600, 610.

A repealer of "statutes of Great Britain" does not extend to the statutes of England, and was intended to prescribe the union of England and Scotland [1707] as the period at which the statutes of England should cease to operate here. O'Ferrall v. Simplot, 4 Iowa, 381; see Reg. v. Mallow Union, 12 Ir. C. L. 35.

In several of the states the statute of Elizabeth has been repealed by a general repealer of English statutes, or denied recognition as ever having been adopted as a part of the common law. In Maryland, Dashiell v. Att'y-Gen., 5 Har. & Johns. 392; Meade v. Beale, Taney's C. C. Decis. 339. In Virginia, Gallego v. Att'yGen., 3 Leigh, 450; Seaburn v. Seaburn, 15 Gratt. 423;

Baptist Ass'n v. Hart, 4 Wheat. 1; Wheeler v. Smith, 9 How. 79; see Carpenter v. Miller, 3 W. Va. 174; Roy v. Rowzie, 25 Gratt. 599, 607. In Tennessee, Dickson v. Montgomery, 1 Swan, 348; Frierson v. General Assembly, 7 Heisk. 683. In New York, Bascom v. Albertson, 34 N. Y. 584; Holmes v. Mead, 52 N. Y. 332; Ayres v. Methodist Church, 3 Sandf. 351, 367; Downing v. Marshall, 23 How. Pr. 4. ln Wisconsin, Heiss v. Murphey, 40 Wis. 276. In Indiana, Grimes v. Harmon, 35 Ind. 198. In Illinois, see Plumleigh v. Cook, 13 Ill. 699. In Ohio, Perin v. Carey, 24 How. 465, 497. In Pennsylvania, Bethlehem v. Perseverance Co., 81 Pa. St. 445. In South Carolina, Att'y-Gen. v. Jolly, 1 Rich. Eq. 99, 2 Strobh. 379. Contra, Drew v. Wakefield, 54 Me. 291; Going v. Emery, 16 Pick. 107; Amer. Acad. v. Harvard Coll., 12 Gray, 582.

The conclusion is that the 43 Eliz., if ever in operation in New Jersey, was repealed in 1799, since when decisions founded thereon are inapplicable.-REP.

THE LAW OF FIXTURES-ITS FUNDAMENTAL PRINCIPLES.-II.

The most reasonable mode of ascertaining the exact nature of this relation, seems to be to inquire what is the relation that exists in nature between the parts which constitute realty in its natural state.

These parts are generally rocks in solid strata, large masses, boulders, spalls, pebbles, gravel and sand, earth, trees, bushes, grasses, water in ponds, fish in this water, rabbits in warrens, and other living things, which, by their nature or instincts, or natural circumstances, are confined within the precincts of particular tracts or lots of land. What is the relation which is common to all these parts? The rock in strata and large masses alone have any pretention to be called inmovable. The vegetable growths are fastened to the earth, sand and rocks at one end, but the other parts of them are generally in motion. The particles of water, earth, sand, &c., are free to be moved as well by natural as artificial causes, and are frequently moved; the animal parts are free to move and do move, most of the time in their respective ranges. The parts are together in one mass, held so mostly by the force of gravitation, partially assisted by the forces of cohesion and adhesion. But each part is, until separated by some external force, always in contact with some other part. This contact is very often separated by natural and artificial external forces. But the proportions of the parts so separated, compared with those which constitute the whole earth, are so small that while this contact cannot be said to be absolutely permanent, it may be said that it is in general probably so. According to analogy, therefore, the relation which would have to be brought about in order to make a chattel a part of any real estate, would be that of actual contact which will probably be permanent. In order that that probability may exist, two things are plainly necessary; first that the contact be so secured that it will not be likely to be disturbed by the force of the elements or the acts of man. And it may be secured by any adequate force, whether of gravitation, cohesion or adhesion. Second, that those who shall have control of the

destinies of the two things shall intend that the contact shall be permanent. Whether these two things exist in any particular case, are questions of fact to be determined by evidence.

It is believed that these ideas which seem thus to grow so naturally out of this subject, will reconcile a vast majority of the decided cases; will show the reason of the various true rules which have been laid down on this subject, and afford a proper criterion of testing the correctness of all cases and all rules.

It is generally agreed that the original rule of the law of fixtures was, that every chattel which, with the assent of its owner, became annexed to a freehold became part of the realty. The writer has found no discussion of the principle of this rule. The old cases seem to indicate that it was supposed to be based on an ancient public policy to promote the interests of the landholders, who were then the only persons of influence and whose rights were supposed to be the objects of any special legal regard. So the second rule of this law that fixtures erected by a tradesman for the purposes of his trade do not become part of the realty, is said in the old cases to be founded upon a later public policy to promote the interests of trade. But when this rule became, from time to time, extended so as to apply to annexations by the tenants of particular estates, to ornamental fixtures annexed by any sort of tenants, and in cases arising between heir and executor, vendor and vendee, mortgagor and mortgagee, it seemed to become evident that this principle would no longer avail to support the rule, and we hear this reason for it now rarely alluded to. The fact that the principle would not apply to new cases which the common convictions of the courts held not to be within the ancient rule, would seem to be sufficient of itself to show that this was not the true reason of the rule. And the fact supposed to be unquestionable, that it never was and never could reasonably have been supposed that contracts, which would have been in violation of the supposed policies were void, shows conclusively that these rules never grew out of such policies at all. But on the contrary it is believed that it is axiomatically true that any rule of decision which may be controlled by contract, is not a rule of policy, but only for determining what intent may be reasonably presumed in the absence of evidence of an actual one. And our annotators to Smith's Leading Cases in their remark (page 275) that an agreement as to the fixtures under discussion "repelled the implication that would otherwise have arisen, that they were meant as a permanent addition to the soil or gift to the owner of the inheritance," indicate what seems to be a satisfactory reason for the original rule.

At that time no property was accounted worthy of consideration but land. The power of the country was in the hands of the great landowners, who looked but little to any interests but their own, and hesitated little to appropriate to their own use anything to which they could make any pretense of claim. It was, therefore, doubtless then true, that whenever any chattel was affixed