treated in equity as a trustee for the charity. Upon the conclu sion derived from this case alone, that great master of real property law, Lord St. Leonards, came to the conclusion that chari ties could be forced before the statutes of Elizabeth.1

Still further, there is reason to believe that the cy près power of the court was exercised at an early day. This would naturally be anticipated from the influence of the principles of the Roman law upon the rules of Chancery. The bishops, who for many years sat in the Court of Chancery, were entirely familiar with that class of principles. There was every reason to apply them as the same motive, "to benefit the soul," was equally operative under both systems of jurisprudence. A conveyance of lands had been made to a rector and churchwardens, on condition to appropriate a fixed sum to say masses for the soul of the dead. After the statute of Chantries was passed, forfeiting to the crown lands given to superstitious uses, a grant was obtained from the King to one Payne, whose grantee brought his action in the Common Pleas against the rector, &c. This proceeding failed, becaus as the superstitious uses had not been carried out for six years, case came within the saving of the statute. The grantee then commenced a suit in Chancery, in 22 and 23 Elizabeth. The rector, &c., showed that they had appropriated all the, surplus over the fixed sum, to good and laudable uses for the support of the poor, &c. The court established the title of the rector, &c., decreeing a certain rent-charge to the grantee of the King. The case shows that the Court of Chancery was a proper tribunal to enforce the use. The King manifestly only succeeded to the right of the cest que use. The theory that all surplus income should be devoted to charity in accordance with the modern cy près doctrine, seems to be regarded. Nothing appears to have gone to the heirs.

1 Drury & Warren, 309.

28 Coke, 130; Boyle, pp. 180-191.

3 Barton's Will, made in 1434. 6th Report of Commissioners of Charities. p. 19 S. C. endowed Charities of the City of London; reprinted at large from the reports of the Commissioners concerning charities, p. 161-2. More than tw hundred and fifty charities in London alone, are described in this volume as having been endowed before 1600. Most of them still exist.

the

The more difficult question still remains, whether, if property sas left, after the statute of uses, to an unincorporated body, withat the intervention of a trustee, the charity could be upheld? It ould seem, however, that if the principle of Symonds's case was orrect, a testator might be regarded as devoting his land to the ayment of a meritorious claim, and that the conscience of the eir should be so far affected as to fasten the trust upon him. It ertainly seems a very narrow distinction, that the form of making trustee should be vital to the existence of a trust. The only ement which seems to be necessary, is that of consideration, and en the maxim becomes applicable, that a trust shall never fail r want of a trustee. Land directed to be sold for the benefit of ildren was decreed to be sold, though no one was appointed by e testator to make the sale.' Heirs are not unfrequently charged th trusts in equity, growing out of directions to pay debts, &c., de in the wills of their ancestors.2 Lord Hardwicke decreed a case of charities, where no feoffees were created, that the heir law should be regarded as trustee. He applied as against the Er the cy près doctrine in the same manner as he would have ne in the case of feoffees.3

It still remains to examine the statutes of Elizabeth, the subject Informations in Chancery, and the extent to which the court Forced jurisdiction in gifts of personal property.

(To be Continued.)

1 Tothill's Rep. 121, 39 Eliz.

T. W. D.

2 Lewin on Trusts, 77.

3 Attorney General vs. Johnson; Ambler R. 190.

RECENT AMERICAN DECISIONS.

In the Supreme Court of Massachusetts-January Term, 1862at Boston.

AMBROSE MERRILL vs. BOYLSTON FIRE AND MARINE INSURANCE CO.

1. An abandonment of the voyage insured and substitution of a new voyage defeats the policy of insurance from the time of such abandonment, although when the loss occurs, the vessel is sailing in a track or course of the voyage common both to the voyage described in the policy, and in the substituted voyage.

2. Such abandonment may occur after the vessel has commenced her specified voyage.

3. The facts in the present case present a case of abandonment, and not one of an intention to deviate, and the policy was therefore at once defeated when the master of the ship abandoned the termini of the voyage described in the policy, and sailed from Falmouth, bound to Antwerp, as her port of discharge.

This was an action by the assured upon a policy of insurance in the following form,-" six thousand dollars, viz: two thousand on freight of ship Abby Langdon, at and from Newport to Point de Galle, and thence to Akyab. Also, four thousand dollars on freight of said ship, at and from Akyab to port of discharge in the kingdom of Great Britain, at and after the rate of four and one-half per cent. from Newport to Point de Galle and Akyab, and three per cent. from Akyab to Great Britain."

The ship performed her voyage to Akyab, and while there the master entered into a contract to take on board a cargo of rice, and to proceed to Falmouth for orders to discharge at a port in the United Kingdom or on the Continent, between Havre and Hamburgh inclusive. The ship safely arrived at Falmouth, and the master there received orders to go to Antwerp to discharge his cargo, and in pursuance of those orders and the previous contract made by the master, the ship sailed from Falmouth, bound for Antwerp, as her port of discharge. While the ship was pursuing the voyage to Antwerp by the usual track for such a voyage, on the south side of the Isle of Wight, she was totally lost by the perils of the sea. If the master had received orders at Falmouth to go to any port on the east coast of Great Britain, north of the Isle of Wight, the

ship might, without deviation, have pursued the same course which was followed down to the time of the loss.

It was held by the court that these facts presented a case of abandonment of the voyage insured, and that the ship in sailing from Falmouth, bound for Antwerp, as her port of discharge, had entered upon a new and substituted voyage, and the policy was thereby defeated.

The case was argued by H. W. Paine for the plaintiff, and B. R. Curtis for the defendants.

The opinion of the court was delivered by

DEWEY, J.-The question is, whether this loss happened in the course of the voyage insured, and while the same was covered by the policy. Certain general principles will be found to have been settled in the adjudicated cases, which will reduce the question now before us to a narrow compass. A well-settled distinction exists between the cases of a purposed deviation, and an abandonment of the voyage. As respects an intention to deviate, if the loss occurs before an actual deviation, the underwriter is not discharged. An abandonment of the voyage and substitution of another and different voyage at once defeats the policy. The point of doubt, and in reference to which there will be found a conflict of authorities to some extent, is as to the facts necessary to constitute an abandonment; or, in another form of stating the point, what class of cases range under the head of an intention to deviate merely, and thus retain the benefit of the policy, if the loss occurs before the departure from the route common to both the port described in the policy, and the port intended to be reached by a deviation.

In this latter class all agree that the more simple and ordinary cases of proposed deviation, occurring under some new motive or purpose arising after the vessel has sailed on her prescribed course, and when the deviation was to be a temporary deviation only, and not to defeat her voyage to the port named in the policy, would furnish a case where the mere intent to deviate would not affect the policy. The weight of authority seems also very clearly

to show that a purpose existing at the commencement of the voy. age to put into an intermediate port out of the course of the voyage described in the policy, the original termini of the voyage being still preserved, is not the substitution of a different voyage, but only an intention to deviate: Foster vs. Wilmer, 2 Strange, 1248; Marine Insurance Co. vs. Tucker, 3 Cranch, 357; Hobart vs. Norton, 8 Pickering, 160; Hare vs. Travis, 7 Barn. & Cresswell, 15; Parsons on Maritime Law, 2 vol. 306.

It will be observed that the cases held as mere intention to deviate, embraced in the last proposition, are cases where there was, at no period, any intention to change the termini of the voyage, and the proposed departure from the direct course of the voyage was only to be temporary, and the vessel to resume and perfect the voyage to the port named in the policy.

As to the abandonment of the voyage described in the policy, and substitution of a new one, all agree that when an actual abandonment of the voyage, and substitution of a distinct voyage, has occurred before the commencement of the voyage, the policy does not attach or cover any loss in whatever part of the voyage it has occurred. But as to what facts will constitute an abandonment of the voyage, and at what period of time, in reference to the voyage, it must be determined and acted upon, has been the subject of much discussion and conflict of opinion.

On the one hand, it is insisted that there can be no application of the principles applicable to abandonment, if the alteration of the voyage and substitution of a new one occurs, at any point subsequent to the commencement of the voyage, and that all changes of purpose as to the course of the voyage are to be treated as deviations, or intended deviations, and therefore, if the vessel is lost before the actual deviation, such purpose, however fully settled, does not defeat the policy.

On the other hand, it is alleged, if the ship either originally sail on a different voyage from that described in the policy; or if, after commencing her voyage, she entirely abandoned all intention of prosecuting it, this is a change and abandonment of the voyage, which