Lord Coke spoke of the whole growth of our jurisprudence. It is no amendment of the tree if mischievous excrescences be pared and trimmed, so as to be tolerable still. The only true amendment is the excision of the whole mischief; not such a remodelling of it as leaves it more thriving, more likely to endure, than before.

It is much to be regretted, however, that the good which we see about to arise from this measure, will be necessarily long, very long, of bearing practical results. The full advantages must of course be deferred until the first registered conveyances acquire the dignity of full age. Some restraint at the least, however, might be immediately placed on the doctrines of tacking and notice; yet the very judicious enactments of the measure now before us, in respect to these doctrines, are not to take effect in any district until registration shall have commenced. And this may not be for a long time, certainly years will elapse before all England be included. The interval, indeed, will probably now be much shorter than could have been the case under the original measure, when maps were to have been formed and the land index arranged before registration could commence. But even now it does not seem to be contemplated to bring the present register counties within this act until 1857,1 and during all that time, in those districts at any rate, tacking and notice will continue on the present footing.

The very great extent of the subject, and the possibility that the measure may in the end even yet fail of being carried through the Lower House this session, has prevented us from anything but a review of the salient points of the present measure, and the subject of registration in general. We can only wish (and, we fear, wish in vain) that some measure could be introduced which could do for present titles, what this bill seems calculated to effect for titles thirty or forty years hence, bearing always in mind that a register office is only in one case out of fifty required for the protection of a purchaser against a fraudulent vendor, but that it would almost to a certainty, in the remaining forty-nine cases, be of assistance to a bona fide vendor to satisfy a cavilling, over-scrupulous purchaser.

1 Sects. 76, 78, of the bill.

The proportion assumed by Sir E. Sugden of titles fraudulently bolstered up by the suppression of concealed deeds.

ART. II. THE EQUITABLE DOCTRINE OF
APPROXIMATION.

ALTHOUGH the equitable doctrine of approximation, or, as it is generally called, cy près, is in its application regulated by abstract principles of a more than usually refined and subtle character, still these, when clearly apprehended and separated from the details of facts and circumstances peculiar to each case, by which they are not unfrequently concealed or at least obscured in the Reports, may be so generalized and arranged as to be distinctly brought before the mind within the compass of a comparatively few pages; and accordingly our present object is to gather within the scope of a single article the various cardinal points in connection with this subject which have been decided by the judges of the Court of Chancery, to whose jurisdiction the determination of cases of this nature has been specially and very properly assigned.

Without entering into any historical detail of the incouveniences and ecclesiastical frauds, the removal and the frustration of which the legislature contemplated in the enactment of the Statutes of Mortmain, it may be sufficient at the outset to state, that at an early period courts of equity, with a view to preventing the utter defeat of a devisor's particular intention, were anxious to discover a method by which it might consistently with legal principle be carried into effect. There was thus gradually introduced such a modification of the strictness of the common law, with respect to conditions precedent, as is at once rational and promotive of the real intention of the testator; it being held, that, where a literal compliance with a condition imposed by a devisor became impossible, in consequence of unavoidable circumstances, and without any default of the party himself, such condition should be considered as satisfied, provided it was observed as nearly as it practically might be. This relaxation of the strictness of legal principle seems to have been derived from the civil law, and rests on a presumption that a devisor could not intend to require the observance of a condition which very possibly could not in the nature of things be fulfilled; but simply such a substantial compliance of his directions as amounted to a fair and reason

The statute generally referred to as the Statute of Mortmain is the 9 Geo. 2, c. 36; but vide the remarks of Sir R. P. Arden, M. R, in the case of Corbyn v. French, 4 Ves. 427, where he disputes the propriety of giving to that act such a designation.

1

able execution of them. Thus originated the doctrine of approximation; which, when once adopted, was in not a few decisions allowed to operate to a very considerable extent.2

The illustration of the principle in its primary and simplest form is afforded by those instances of devises in which the testator has expressed himself in terms which were considered by the court to convey a clear indication of his intention that the devisee and his issue should take the lands, as well as an intimation of the mode in which such issue should take them; while, at the same time, the language of the testator has been such as that, when construed literally, it disclosed limitations contrary to law. Courts of equity, in construing the language of such devises, decided that the primary object which the testator had in view was, that the devisee should take the land, and that the mode in which it should be taken was only a secondary object in the mind of the devisor; in other words, that the former point was his general and the latter his particular intention. The rule, therefore, being that the intention of the devisor should be effectuated as far as it possibly might be, it was found necessary to sacrifice the particular objects which he might appear to have contemplated, in order that his general purpose might be fully realized. Thus, by a construction so enlarged as to embrace all the parties intended to be benefited within the operation of the devise, the mode in which they should take might materially vary from what appeared to have been the wishes and design of the testator; and, in fact, so far had this canon of interpretation been carried, and so much nice discrimination was it necessary to exercise in the application of it, that the judges in equity anticipated evil results from its further progress; the doctrine of approximation, even in its incipient state, when viewed strictly as operating upon real property, was denounced as having been carried to the utmost verge of the law, and as having, under a pretext of reconciling the general with the particular intention of a testator, proved the means of totally annihilating both. The principle, how

Vide 1 Story's Comm, on Eq. Jurispr. 235, and the authorities there quoted. 2 Fearne, Cont. Rem. by Butler and Smith, 4th ed. 204, and 205, n.; compare 2 Ves. jun. 380; 3 Ves. 141, 220, 633. Lord Loughborough, in the case of Att.-Gen. v. Andrews, 3 Ves. 633, remarked, that some of the cases cited had gone so far as to exclude the doctrine of cy près in questions relating to charities from the consideration of the court, -a notion which he refused to sanction. So that it would appear that counsel at least had attempted to carry the doctrine from one extreme to another.

3 Vide 1 East, R. 451; 7 Ves. 390; in the latter of these cases, the language of Lord Eldon, as to the necessity of encouraging a more cautious application of the doctrine, is very strong.

It may perhaps be unnecessary to remind even the most inexperienced reader

ever, even after the courts had become more guarded in the application of it, was, when extended to the regulation of charitable bequests, allowed so freely to expand itself that it at last grew into a branch of equitable jurisprudence of considerable extent and importance. Even pure points of jurisdiction have arisen in connection with this subject. Before the Court of Chancery could in such cases assume jurisdiction, there must have been an appointment of trustees, or, at all events, evidence that such appointment had been contemplated; for if the gift were to charity generally and indefinitely, without trustees nominated or objects specified, the king, as parens patriæ, assumed the office of constitutional trustee. A question, therefore, immediately arose as to whether the jurisdiction of the court was to extend over every case in which trustees had been originally interposed, without reference to any subsequent events, or whether the jurisdiction could by circumstances be so curtailed as to transfer the right of patronage and regulation affecting the charity from the Court of Chancery to the crown. Under either jurisdiction, however, the principles observed in the administration of the charity are identical. The crown, so far from appointing arbitrarily by its sign-manual, considers its prerogative to be circumscribed by the rules which have been established in courts of equity; and accordingly, to ascertain the rules by which the advisers of the crown ought, in the that the doctrine under consideration is not applicable to personal legacies (2 Ves. jun. 357); nor is it applicable to limitations in a deed (7 Ves. 390; compare Fearne, Cont. Rem. 208, n.) Even when the general principle respecting perpetuities is involved a distinction has been admitted to exist, inasmuch as the courts are extremely unwilling to arrive at the conclusion of a devise being utterly void; they would rather apply the doctrine of approximation, and so expound the will as to carry the intention of the testator into effect, so far as such interpretation may be consistent with the rules respecting perpetuities. Vide Cr. Dig. tit. 32, c. 26.

1 The general principle most reconcileable with all the cases is, that where there is a general indefinite purpose, not fixing itself upon any objects, the disposition is in the king by sign-manual; but where the execution is to be by a trustee, with general or some objects pointed out, that the court will assume the administration of the trust (7 Ves. 86; compare 5 Russ. 112, 113). Lord Eldon, in alluding to the means by which the general intention was to be carried into effect, considered it a most difficult question. It being established that where money is given to charity generally and indefinitely, without trustees or objects selected, the king is the constitutional trustee, it is not easy to raise a solid distinction between an original gift absolutely indefinite and without qualification and a case in which, by matter ex post facto, the gift stands before the court, in consequence of that accident, as if it had been originally given indefinitely, without any means prescribed for carrying it into execution. "All I can say about "it is," continued that eminent judge, "that I do not know what doctrine could "be laid down that could not be met by some authority on this point, whether "the proposition is that the crown is to dispose of it, or the master by a scheme."

discharge of such administrative duties, to be guided, it is only necessary to keep steadily in view the course of reasoning which a court of equity would in all probability have under similar circumstances pursued.1

But supposing that there should be no preliminary bar to the interference of equity, arising, on the one hand, out of the nature of the case itself, or, on the other, inseparable from the constitution of the court, it by no means follows that there may not be other ingredients which render the application of the doctrine highly inexpedient, even although the consequence of disregarding it should be a total defeat of the charitable purpose contemplated.

The first class of cases, for the regulation of which the court has declined to interpose its authority, is composed of those in which, from the very special and limited purposes which the donor had in view, an intention has been indicated of confining the gift to such purposes. All idea of applying the property to the attainment of any ends except those specified having thus been precluded, the charitable object has been not unfrequently utterly defeated, either in consequence of some vice inherent in the very nature of the purposes intended, or by the direct interposition of Mortmain Acts. In cases of the former description, for instance, it was held by Lord Kenyon, that, if no obstacle intervened to prevent the testator's object being effected, his intention must be strictly pursued, without any controlling or qualifying interference on the part of a court of equity; and this decision was subsequently considered as being so conclusive on the point that Lord Alvanley3 treated the notion of applying a fund, which happened to be in question before him, under the circumstances of the case, to any other charitable purpose than the one distinctly marked out as being altogether incompatible with the spirit and language of that decree. All doubt upon the subject was finally removed by Lord Eldon and in pursuance of the same principle, Lord Cottenham,5 when Master of the Rolls, dealing with the facts of a case in which there was clearly no gift, except on condition of that being done which could not possibly be effected, held, that the principle on which

1 Such gifts as are affected by the law relating to superstitious uses constitute a totally distinct class of cases, which may probably be the subject of subsequent examination.

2 Att.-Gen. v. Bishop of Oxford, 1 Bro. C. C. 444, n. "The intention," said Sir Lloyd Kenyon," must be implicitly followed, or nothing could be done." 3 4 Ves. 432; compare the language of Lord Alvanley, 2 Ves. jun. 388; vide 3 Bro. C. C. 379; 3 Ves. 646.