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son of the improper condition of the second-class car, and the disorderly conduct of the other passengers. The court said: "Had the appellee and his wife been entitled to passage in only a second-class car, we do not understand that the appellant would not then have been compelled to exercise due care to protect them from discomforts resulting from the acts of other passengers, and not incident to the kind of car used for passengers of that class, whether those discomforts were physical or mental. A railroad company cannot subject passengers, even in a second-class car, to noxious influences not necessarily or ordinarily incident to such travel, but brought about by the wrongful acts of other passengers, which the company, by the exercise of proper care and due regard for the welfare of passengers, could prevent, without liability for injury resulting from such causes. The record shows that the wife of appellee was compelled to ride in a car full of tobacco smoke, which caused nausea; that she was compelled to ride where she could not avoid hearing rough, profane and obscene language, and witness acts of violence and drunkenness. These things carriers of passengers ought not to permit in vehicles in which they undertake to transport decent men, much less refined and delicate women; and if they do, when they could prevent them by the use of due care, they must respond in damages based on injuries, physical and mental, which for their measure must largely depend on the honest exercise of the judgment and discretion of the court or jury trying the cause. the case before us however the appellee and his. wife were entitled to passage in first-class cars. From a car of that class they were expelled by the conductor on appellant's train wrongfully, and in a manner calculated to humiliate and distress them. Thus were they compelled to take passage in cars in which the discomforts were greater than in the cars in which they were entitled to ride, and to suffer the unnecessary annoyances to which they seem to have been subjected. We cannot say that the evidence did not warrant the verdict and judgment."

In United States v. Rector, etc., of the Church of the Holy Trinity, United States Circuit Court, S. D. New York, May 21, 1888, the statute entitled "an act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States" prohibits the encouragement of migration of aliens under contract or agreement previously made "to perform labor or service of any kind in the United States," imposes a penalty on any person or corporation encouraging migration of an alien under a contract or agreement previously made "to perform labor or service of any kind," and contains a proviso exempting from its provisions "professional actors, artists, lecturers or singers." The defendant, a religious corporation, engaged an alien residing in England to come here and take charge of its church as pastor. Held, that the corporation was liable to

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the penalty prescribed. Wallace, J., said: "It was no doubt primarily the object of the act to prohibit the introduction of assisted immigrants, brought here under contracts previously made by corporations and capitalists to prepay their passage and obtain their services at low wages for limited periods of time. It was a measure introduced and advocated by the trades union and labor associations, designed to shield the interests represented by such organizations from the effects of the competition in the labor market of foreigners brought here under contracts having a tendency to stimulate immigration and reduce the rates of wages. Except from the language of the statute there is no reason to suppose a contract like the present to be within the evils which the law was designed to suppress; and indeed it would not be indulging a violent supposition to assume that no legislative body in this country would have advisedly enacted a law framed so as to cover a case like the present. Nevertheless, where the terms of a statute are plain, unambiguous and explicit, the courts are not at liberty to go outside of the language to search for a meaning which it does not reasonably bear in the effort to ascertain and give effect to what may be imagined to have been or not to have been the intention of Congress. Whenever the will of Congress is declared in ample and unequivocal language, that will must be absolutely followed, and it is not admissible to resort to speculations of pol icy, nor even to the views of members of Congress in debate, to find reasons to control or modify the statute. United States v. Railroad Co., 91 U. S. 72. If it were permissible to narrow the provisions of the act to correspond with the purport of the title, and restrain its operation to cases in which the alien is assisted to come here under contract 'to perform labor,' there might be room for interpretation; and the restricted meaning might possibly be given to the word 'labor' which signifies the manual work of the laborer, as distinguished from the work of the skilled artisan or the professional man. But no rule in the construction of statutes is more familiar than the one to the effect that the title cannot be used to extend or restrain positive pro visions in the body of the act. In Hadden v. Collector, 5 Wall. 107, it is said: "The title of an act furnishes little aid in the construction of its provisions.' The encouragement of migration prohibited by the first section is of aliens under contract or agreement made 'to perform labor or service of any kind in the United States.' The contracts which are declared to be void by the second section are contracts having reference to the performance of labor or service by any person in the United States' previous to the migration of the alien. The penalty imposed by the third section is imposed on the person or corporation encouraging the migration of the alien under a contract or agreement previously made to perform labor or service of any kind." No more comprehensive terms could have been employed to include every conceivable kind of labor or avocation, whether of the hand or brain, in the

class of prohibited contracts; and as if to emphasize and make more explicit the intention that the words 'labor or service' should not be taken in any restricted sense, they are followed by the words 'of any kind.' Every kind of industry, and every employment, manual or intellectual, is embraced within the language used. If it were possible to import a narrower meaning than the natural and ordinary one to the language of these sections, the terms of the fifth section would forbid the attempt. That section is a proviso withdrawing from the operation of the act several classes of persons and contracts. Foreigners residing here temporarily, who may engage private secretaries; persons desirous of establishing a new industry not then existing in the United States, who employ skilled workmen therein; domestic servants; and a limited professional class, are thereby exempted from its provisions. The last clause of the proviso is: 'Nor shall the provisions of this act apply to professional actors, artists, lecturers or singers, nor to persons employed strictly as personal or domestic servants.' If without this exemption the act would apply to this class of persons, because such persons come here under contracts for labor or service, then clearly it must apply to ministers, lawyers, surgeons, architects, and all others who labor in any professional calling. Unless Congress supposed the act to apply to the excepted classes there was no necessity for the proviso. The office of a proviso is generally to restrain an enacting clause, and to except something which would otherwise have been within it. Wayman v. Southard, 10 Wheat. 30; Minis v. United States, 15 Pet. 423. In the language of the authorities: 'A proviso carves special exemptions only out of the enacting clauses.' United States v. Dickson, 15 Pet. 165; Ryan v. Carter, 93 U. S. 83. Giving effect to this well-settled rule of statutory interpretation, the proviso is equivalent to a declaration that contracts to perform professional services except those of actors, artists, lecturers or singers, are within the prohibition of the preceding sections."

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Thus wrote the inimitable Mr. Samuel Pepys on Lord Mayor's Day, 1663. And this question, "It it wine or not? is is intoxicating or not?" has worried many a one since that day. For the benefit of those interested in temperance work, dictionary-makers and the compilers of the next edition of the Encyclopædia Britannica, we give a few recent legal definitions concerning Drinks and Drinking." Some of these explanations may be vague as was that of the great Dr. Johnson, when he defined "net-work" as any thing reticulated or decussated, at equal distances, with interstices between the intersections."

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of sugar and saccharine matter. It comes through fermentation of substances that contain sugar proper, or that contain starch which may be turned into sugar. All substances that contain either sugar or starch, or both, will produce it by fermentation. It is a mistake to suppose, as many persons do, that it is really produced by distillation. It is produced only by fermentation, and the process of distillation simply serves to separate the spirit-the alcohol-from the mixture, whatever it may be, in which it exists. State v. Giersch, 37 Alb. L. J. 200.

Beer is a liquid infused with malt and prepared by fermentation for use as a beverage. Myers v. State, 93 Ind. 251.

Where the word in an indictment is beer, it will

be presumed to be malt, and therefore intoxicating. Stout v. State, 96 Ind. 407. Proof of sale of "beer" is sufficient proof of the sale of intoxicating liquor. Myers v. State, 93 Ind. 251.

But in Rhode Island there is no presumption of law that "beer" is a malt liquor. State v. Beswick, 13 R.

I. 211. Still the same court "in the tight little

isle" held that lager beer, being a malt liquor, is an intoxicating liquor. State v. Rush, 13 R. I. 198.

In the absence of evidence to the contrary, beer will always be presumed to be an intoxicating liquor. State v. Feissedre, 30 Kans. 476; State v. Jenkins, 32 id. 471. Beer is an intoxicating liquor in Nebraska. Kerkow v. Bauer, 15 Neb. 150.

"I think a man must be almost a drivelling idiot who does not know what beer is. I do not think it necessary to prove what it is." So spoke the judge at the trial. "When beer is called for at the bar in a saloon or hotel, the bartender would know at

once from the common use of the word that strong beer, a spirituous or intoxicating beer, was wanted, and if any other kind was wanted the word would be qualified, and the particular kind would be named-as

root beer or small beer, etc. When therefore the word "beer" is used in court by a witness, the court will take judicial notice that it means a malt and an intoxicating liquor, or such meaning will be a presumption of fact, and in the meaning of the word itself there will be prima facie proof that it is malt or intoxicating liquor that is meant." So'said the court. Briffitt v. Wisconsin, 58 Wis. 39; S. C., 46 Am. Rep. 621. Evidence that a man in a saloon drank liquor that looked like beer, which he paid for, and was presently intoxicated, tends to show that intoxicating liquor had been sold to him. Wilson v. Booth, 57 Mich. 249. Brandy Peaches and Brandy Cherries, preserved in liquor are spirituous liquors, the sale of which is punishable under the Alabama statutes. Ryall v. State, 39 Ala. 204. In Arkansas however it was held that the sale of brandy peaches, six peaches in a bottle, with a gill of liquor, was not a sale of intoxicating liquors. Rabe v. State, 39 Ark. 204.

Brewer A brewer of beer is not one "engaged in distilling and rectifying alcoholic or malt liquor." State v. Weckenburg, 38 La. Ann. 36.

Catawba Cider-This may be another name for lager beer for all I know;" so said the judge at the trial, not having the fear of the judge who heard the case of Briffitt before his eyes, and his remark was held to be no ground for a new trial. Mixam v. State, 88 Ind. 599.

*When we annex Canada, Bro. Rogers will learn that Rhode Island is not altogether an isle.-ED.

Cider and Crab Cider are not "spirituous," nor of "like nature as wine, ale, porter or beer." Cider is neither produced by distillation nor by fermentation. Being the unadulterated juice of the apple, it is no mixture, and under ordinary circumstances incapable of producing intoxication; it cannot be classed as a spirituous liquor, neither can it with any degree of propriety be called "wine," and it is wholly unlike any fermented liquor made from a malted grain or from the roots of plants or the bark of trees-as spruce, ginger, sassafras-ginger and sarsaparilla. State v. Oliver, 26 W. Va. 422; S. C., 53 Am. Rep. 677.

In Iowa it was held that cider made from apples is an intoxicating liquor. State v. Hutchison, 36 Alb. L. J. 498.

Cinnamon, Essence of Held, that defendant was properly found guilty of selling intoxicating liquor on proof of the sale of a bottle of essence of cinnamon, and that the purchaser, after drinking it, had been so affected by it that he could not see after night. (Johnson and Woods, JJ., dissent.) State v. Muncey, 28 W. Va. 494.

Coffee-House - Under a license to keep a coffeehouse, the privilege to sell spirituous liquor is not implied or embraced unless such privilege is expressly specified in the license. Com. v. Woods (Ky. Super. Ct., 1882), 27 Alb. L. J. 64.

Confectionery - "By no possible stretch of construction can confectionery' be held to include the selling of liquor by the drink. City v. Jane, 34 La. Ann. 667. Cordial A cordial made of whisky, sweetened and scented with peppermint or other things, is a spirituous liquor. Godfrey's Cordial is a very different thing, known for and sold as medicine; and there can be no danger that the sale of it will promote tippling. State v. Bennett, 3 Harr. 565.

Cronk Although this was sworn to be a kind of beer, the court would not take judicial notice that it is intoxicating or spirituous. Reg. v. Beard, 13 Ont. Rep. 608.

Decoction of whisky and bitter herbs, barks, etc., when intoxicating and used as a beverage, is "spirituous liquor." Wall v. State, 78 Ala. 417.

Drink-Where a drink was sold for ten cents the court held that the jury were authorized in finding that the quantity was less than a quart. Hamilton v. State, 103 Ind. 96.

Drunk-This means so far under the influence of intoxicating liquor that the passions are visibly excited or the judgment impaired by the liquor. State v. Pierce, 65 Iowa, 85.

Gin-The court will not take judicial notice that gin is an inflammable liquid in the insurance sense of the word. Mears v. Humboldt Ins. Co., 21 Alb. L. J. 114. Gum-Camphor and Alcohol, sold as a medicine, is not within a statute prohibiting the sale of "spirituous liquor," and providing that "all mixtures or preparations, known as bitters or otherwise, which will produce intoxication" shall be deemed "spirituous liquor." "In almost every home will be found the 'camphor-bottle,' containing gum-camphor dissolved in distilled spirits, and used exclusively as a medicine, and kept ready for use when needed, but impalatable as a beverage, and never used as such." State v. Hammond, 20 W. Va. 18 (1883).

Home Bitters-Held, that Home Bitters, composed of thirty per cent of alcohol and the rest of water, bark, peelings, seeds, etc., sold as a medicine, although intoxicating, was not "spirituous liquors" within the meaning of the law. King v. State, 58 Miss. 737; but over the way in Arkansas, Home Bitters and Home Sanative Cordials, containing twenty-two per cent of alcohol, were held to be within an act prohibiting the sale of ardent spirits, and all compounds and preparations thereof. Gostorf v. State, 39 Ark. 450.

Habitual Drunkard - Where a person indulges in the practice of becoming intoxicated whenever the temptation is presented and the opportunity is afforded him, it may safely be said that he is an habitual drunkard within the meaning of the statute relat ing to divorce. Blaney v. Blaney, 126 Mass. 205.

Intoxicating Liquors. Proof that defendant's wife gave witness a bottle full of something that tasted like rum, but was not rum; smelt alcoholic, and looked like whisky, but was not intoxicating, though witness thought "it might put a quietus on a man;" that he paid therefor, and that after drinking it he slept two hours; held sufficient evidence of a sale of intoxicat ing liquor. Common v. Peto, 136 Mass. 155.

Lager Beer is not included under the term "spiritu. ous liquor or wine." State v. Thompson, 20 W. Va. 674. It is a question for the jury whether it is intoxicating or not. The court will not take notice of its intoxicating properties. People v. Scherve, 29 Huu,

122.

Lime-Juice is the color of whiskey, and is made up of lime-juice, sugar, ginger and water, yet the court strongly objected to country justices taking judicial notice that it is intoxicating or spirituous. Reg. v. Beard, 63 Ont. Rep. 608.

Medicated Bitters, producing intoxication, are "intoxicating liquors" within the meaning of that term as used in local-option acts. James v. State, 21 Tex. App. 353.

Phoenix One charged with the sale of malt liquor may be found guilty on proof of sale of "Phoenix," and proof that it is intoxicating. State v. Pfefferle, 36

Kans. 90.

Saloon- A place where people who call for them are supplied with refreshments. Goesjen v. Phillips, 49

Mich. 7.

Saloon Closed- A saloon is not closed so long as customers can get in through a door and get liquor, or so long as they are there. The absence of the barkeeper is immaterial if the customers can help themselves. People v. Cumniciford, 58 Mich. 328; Hussey v. State, 69 Ga. 54.

Selling to a Minor-C., a minor, and S., an adult, gave money to R., an adult, aud he ordered drinks and paid for them. This is not a sale to C., the minor. It is letting him drink, but it is neither selling nor giv ing to a minor. Siegel v. State, 106 Ill. 89; Ward v. State, 45 Ark. 351.

means contain

Spirituous Liquors — “Spirituous ing, partaking of spirit; having the refined, strong, ardent quantity of alcohol in greater or less degree. Hence "spirituous liquors" imply such liquors as contain alcohol, and thus have spirit, no matter by what particular name denominated, or in what liquid form or combination they may appear. Hence also distilled liquor, fermented liquor, vinous liquor, are all alike spirituous liquor. Lager beer and wine contain alcohol, and generally in such quantities and degree as to produce intoxication. These liquors are therefore "spirituous." State v. Giersch, 37 Alb. L. J. 201. This was in North Carolina. In West Virginia a different view of the matter is taken, and it is held that the term does not include wine or other fermented liquor, for the words imply that the beverage is composed in part or fully of alcohol extracted by distillation. State v. Oliver, 26 W. Va. 422; S. C., 53 Am. Rep. 79.

Sunsmile- An article containing fifteen per cent of alcohol, and capable of producing intoxication, is an intoxicating liquor within the act. Prussia v. Guenther, 16 Abb. N. C. 230. (To smile is an English provincialism for "to ferment." The westerner has gone further, and by it means "to take something fermented.")

Wholesale Liquor Dealer - A manufacturer of liquor,

selling in unbroken packages at his place of business to dealers is not a "wholesale liquor dealer," liable to taxation as other merchants. Taylor v. Vincent, 12 Lea, 282; S. C., 47 Am. Rep. 338; Pearce v.Com., 6 Ky. L. Rep. 113. The mere fact that a liquor dealer sold by the quart, and in larger quantities, not drunk or intended to be drunk on the premises, is not enough to constitute him a "wholesale dealer." State v. Lowerhaught, 11 Lea, 13.

Retail Liquor Dealer · A social club organized under a statute, maintaining a library, giving musical entertainments, furnishing meals for its members, and keeping a small stock of liquors for their exclusive use (affording no profit, but partly paid for by their monthly dues, each member always paying for what he uses as it is taken), is not subject to taxation as a "retail liquor dealer." Tennessee Club v. Dwyer, 11 Lea, 452; S. C., 47 Am. Rep. 298.

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FIRE INS. PATROL V. BOYD.

An insurance patrol company, whose object, as described by its charter, is "to protect and save life and property in or contiguous to burning buildings, and to remove and take charge of such property, or any part thereof, when necessary," though it is without capital stock or moneyed capital, and is supported by voluntary contributions derived from different insurance companies, is a public charity, it appearing that in protecting property no distinction is made between property insured and property not insured, and that no profits or dividends are made and divided among the corporators, and cannot be rendered liable for injuries occasioned by the negligence of its servants or agents.

ERRO

RROR to Court of Common Pleas, Philadelphia county. Two employees of the Fire Insurance Patrol of the City of Philadelphia were sent on May 6, 1883, to remove tarpaulins which had been spread by the company on the upper floor of a building adjoining a burning building, to protect the property therein from injury by water. One of the employees, Andrew C. Koockogey, stood upon the sidewalk, while the other, James H. Hutchinson, threw the tarpaulins from the window to the pavement below. One of the bundles, in its descent, struck Charles A. Boyd, who was passing on the sidewalk, causing injuries from which he died. Action was brought by his widow, Julia F. Boyd, and his minor child against the company and the two employees jointly. A nonsuit was directed as to the defendant Koockogey, and also as to the Fire Insurance Patrol, and a verdict returned against Hutchinson. On error to the Supreme Court, the judgment was affirmed as to Koockogey, and reversed as to the company, and on the return of the record the issue was tried between the same plaintiffs, and the Fire Insurance Patrol as defendant, against which verdict and judgment were recovered, from which it took out this writ of error.

H. La Barre Jayne, Arthur Biddle and George W. Biddle, for plaintiff in error.

PAXSON, J. When this case was here upon a former writ of error (see 113 Penn. St. 269) we did not decide the question whether the Fire Insurance Patrol was such a corporation as to be exempt from the rule of respondeat superior, for the reason that we had little before us but the charter itself, and that was not regarded as sufficient to show satisfactorily the character of the corporation. The case now comes up to us with additional light, and we have no difficulty

in arriving at & conclusion. Of the forty-two assignments of error, I shall discuss only six, viz., the thirtieth to the thirty-fifth, inclusive. The first five of these assignments present in various forms the ques tion whether the insurance patrol is a public charity, while the thirty-fifth alleges that the court below erred in not giving the jury a binding instruction that the defendant was not liable in this action.

As disclosed by the charter, "the object of the corporation was to protect and save life and property in or contiguous to burning buildings, and to remove and take charge of such property, or any part thereof, when necessary." As disclosed by the evidence, it appears to be a corporation without capital stock or moneyed capital; that it is supported by voluntary contributions derived from different fire insurance companies; that its object and business is to save life and property in or contiguous to burning buildings; that in saving and protecting such property no difference is made between property insured and property which is not insured; that no profits or dividends are made and divided among the corporators.

Passing by for the present the question of a public charity, it seems plain that this corporation might well have been created by the State in aid of the municipal government of the city of Philadelphia. It is one of the recognized functions of municipal government to suppress and extinguish fires. For this purpose the city has a paid fire department, which has taken the place of the volunteer fire department formerly in existence. It is as much the province or duty of the city to save life and property at fires as to extinguish such fires, and the Fire Insurance Patrol might well have been organized as an auxiliary to the city government, and placed under its direct control. That it aids the city as a volunteer does not alter the fact that it is still an auxiliary of the municipal government, performing functions which the government might properly perform, just as did the old volunteer fire department.

Is the Insurance Patrol a public charitable institution? The learned court below held that it was not, upon the ground that the main object of the institution was to benefit the insurance companies, who were the chief contributors to its funds. In other words, the learned judge tested the nature and character of the institution by the motives of its contributors. We might be driven to the same conclusion were we to adopt Mr. Binney's definition, as found in his argument in the Girard Will Case, 2 How. 128, as the test of a public charity, where he said: "It is whatever is given for the love of God, or for the love of your neighbor, in the catholic and universal sense-given from these motives, and to those ends, free from the stain or taint of every consideration that is personal, private or selfish." This is undoubtedly charity in its highest and noblest sense; the recording angel might well point to it with satisfaction; and it may be the text in the great hereafter; but were we to apply it to the transactions of this wicked world, I fear it would lead to serious embarrassment. In the first place it is utterly impracticable, for it is God only who can look into the heart and judge of motives. In the second place, if we had the power of omniscience, and were to apply it, what would be the result? How many of our noblest and most useful public charities would stand such a test? How many donations to public charities are made out of pure love to God and love to man, free from the stain or taint of every consideration that is personal, private of selfish? Who can say that the millionaire who founds a hospital or endows a college, and carves his name thereon in imperishable marble, does so from love to God and love to his fellow, free from the stain of selfishness? Yet is the hospital or the college any the less a public

charity because the primary object of the founder or donor may have been to gratify his vanity, and hand down to posterity a name which otherwise would have perished with his millious?

There is ostentation is giving as well in the other transactions of life. In some instances donations to public charities may be in part due to this cause. In others there may be the expectation of indirect pecuniary gain or return. The professional man who gives freely to his church may not be insensible to the fact that liberality makes friends and sometimes increases clientage. Coiled up within many a gift to a public charity there is a secret motive, known only to the Searcher of all hearts. It may be to benefit the donor in this world, or to save his soul in the next. It would be as vain as it would be unprofitable for a human tribunal to speculate upon the motives of men in such cases. Nor is it necessary for any legal purpose. The money which is selfishly given to public charity does as much good as that which is contributed from a higher motive, and in a legal sense the donor must have equal credit therefor. We must look elsewhere for a definition of a legal public charity.

In Morice v. Bishop of Durham, 9 Ves. 405, it was said by Sir William Graut that those purposes are considered charitable which are enumerated in the statute of 43 Eliz., or which by analogy are deemed within its spirit and intendment. It is true that the statute of Elizabeth is not in force in Pennsylvania, but its principles are a part of the common law. Cresson's Appeal, 30 Penn. St. 450. In Museum v. White, 2 Sim. & S. 596, a charitable gift was defined to be "every gift for a public purpose, whether local or general, although not a charitable use within the common and narrow sense of those words." In Jones v. Williams, Amb. 651, Lord Camden gives this practical definition, viz.: "A gift to the general public use, which extends to the poor as well as to the rich." This definition has been repeatedly approved by this and other courts. See Wright v. Linn, 9 Penn. St. 433; Coggeshall v. Pelton, 7 Johns. Ch. 294; Mitford v. Reynolds, 1 Phil. Ch. 191; Perin v. Carey, 24 How. 506: Jackson v. Phillips, 14 Allen, 556.

These brief citations from the English authorities are deemed sufficient. I now turn to our own and other States. In Cresson's Appeal, 30 Penn. St. 437, this court, after citing with approval Jones v. Williams, supra, said: "In order to ascertain what are charitable uses the English courts have generally resorted to the preamble of the act of Parliament (43 Eliz.) That enumerated twenty-one, and among them are found the following: Repairs of bridges; repairs of ports and haveus; repairs of causeways; repairs of sea-banks; repairs of highways; fitting out soldiers; or other taxes. And beyond the enumeration contained in that act many other gifts have been recognized as common-law gifts to charitable uses-for example, for cleansing the streets; maintenance of houses of correction; for the true labor and exercise of husbandry; for public benefit. These cases and are collected in Magill v. Brown, many others Brightly N. P. 347. It is true the statute of Elizabeth is not in force as a statute in Pennsylvania, but as before stated, its principles are part of our common

law.

The case of Magill v. Brown was a Pennsylvania case, and there it was held that a bequest for a fireengine and hose was a gift for a charitable use." In Jackson v. Phillips, 14 Allen, 556, a charity was defined by Justice Gray as follows: "A charity, in legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease,

suffering or constraint, by assisting themselves to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government." This definition has been cited approvingly, not only by text-writers, but by other courts.

In Miller v. Porter, 53 Penn. St. 292, there was a be quest by Porter to a university which was to bear his name, and this court said: "You say it [the Porter University] was not founded to promote religion or religious education, but immortalize the founder, and therefore it was not a charity. If the premises be granted, the conclusion does not follow; because though it has no stamp of religion, and the selfishness of motive may take away from it the high and ab stract quality of a Christian charity, yet it was to be a seat of learning-a university-a center from which the rays of educated intelligence were to radiate in all directions; and if to found a school-house at the cross-roads of a township be a legal charity, though the selfish motive be apparent, much more to found such a university is a legal charity; and if a charity within the legal sense of that word, then it is as much within the purview of the statute as a bequest to the West Town School, and Price v. Maxwell [28 Penn. St. 23] rules the case."

Following in this line of thought is Manners v. Library Co., 93 Penn. St. 165, where it was held in the case of a public charity that the intent of the testator will not be defeated because a secondary intent may be illegal; for if it be unlawful it will be disregarded. In Appeal of Fire Co., 88 Penn. St. 389, it was distinctly ruled by this court that the association was a public charity. That company was one of the members of the old volunteer fire department of the city of Philadelphia; was organized for the purpose of extinguishing fires, and was supported just as the Fire Insurance Patrol is supported, by voluntary contribu tions. It is true many of its contributions came from private citizens, but I am unable to see any distinc tion between contributions to a fire company or insurance patrol made by individuals and those made by corporations. In both cases a corresponding benefit is expected. It would be idle to say that the insurance companies do not expect to diminish their losses by their support of the Insurance Patrol. But has the private citizen who contributes to a fire company any higher motive? Does he pay his money out of love to God and love to man, or does he pay it to protect his property?

It will be noticed that in no one of the cases cited is this motive of the donor made a test of a charity. While it is true that a gift within the definition of Mr. Binney is a good charitable use, and in a moral sense perhaps the best, it has never been held that said definition is a test of a charity. On the contrary, this court held in Martin v. McCord, 5 Watts, 493, that the accession to a charity need not be by a gift, but may be by contract; and that the accession to this charitable use from one who gave ground for a schoolhouse, if the neighbors would go on and build a decent house on it for the benefit of the neighborhood, and for the benefit of his grandson John, whom he wished to send to school, was good; and Sergeant, J., said: 'Not as a gift, but as a purchase for a valuable consideration," and the neighbors were the trustees for a charitable use. And in Miller v. Porter, supra, we have already seen that this court expressly repudiated the idea that the selfish motive affected the legal nature of the gift or use; and held that the object of the bequest only, and not the motive, governed its legal effect. The true test of a legal public charity is the object sought to be attained; the purpose to which the money is to be applied; not the motive of

the donor.

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