per ann. at this day to maintain the Master Vsher and certain poor people in Chelmesford and Moulsham and appointed that the Rents Issues and Profits of their lands should be imployed for their maintenance and not otherwise and appointed the Lord Peter and the Heirs males of his body Sir Tho. Mildmay and the Heirs males of his body Sir Jo. Tirril and the Heirs males of his body and Sir Humfrey Mildmay and the Heirs mals of his body should be Governors of the said Free-School and Lands and that none under the degree of a Knight should be one of the Governors the Governors make Leases of the Lands at under values for Fines and small Rents according as they were at the first Foundation The Commissioners Decree the Government and Ordering of the Lands to others by reason of their breach of Trust Sir Henry Mildmay of Moulsham neer Chelmsford being the chief man that received the Rents let the Leases and defrauded the Trust the rest of the Governors Heirs being within age or beyond the Seas put in Exception to the Decree First that the Corporation had speciall Visitors appointed and so within the Proviso of the Statute Secondly for that the Decree is against the Founders intent who would have none under the degree of Knight to be a Governor to which was answered That when the Visitors break the Trust they may be questioned by Decree of the Commissioners as is the Case of the School of Morpeth and other Cases before cited Thirdly that the generall intent was of Edw. 6. that the Profits of the Lands should be solely converted for the use of the School and poor and that the Visitors and their Heirs should make no profit of it and that of being a Knight was but for the Honour of the Family appointed Governors and they all being persons of great Possessions and living neer Chelmsford But the Lords Commissioners reversed the Decree by reason of the Proviso in the Statute and ordered that a Bill be exhibited against the now Visitors and Governors and that upon proof of their breach of Trust a course should be taken for relief of the School and Poor according to the intent of the Founder The Case where a Tenant in Capite Devised all his Lands to a charitable Vse TH. seised in Fee of the Mannor of L. held in Socage and of 54 acres of Marshland held in Capite deviseth all the Socage-lands to C. Hospitall in L. paying 1000 l after the death of A. the wife of T. H. as she in her life time should appoint the same to be payd Part of the Socage-lands Devised to the Hospitall is by Commission of the Court of Wards set out to N. H. the Heir for his third part A. H. dies and the Hospitall pays the 1000 l The Commissioners for charitable uses have Decreed to the Hospitall all the Socage lands Devised to the use of the poor This being the substance of the Case the questions hereupon arising upon the Appeal were Whether the Devise to the charitable uses be good and whether the Commissioners had power to decree the whole Socage lands devised or but two parts only It was agreed that by the Statutes of 32 and 34 Henry 8. the Devise is voyd for a third part But it was insisted upon that although the Devise be voyd for a third part by those Statutes yet this is such a limitation and appointment within the Statute of 43. Eliz. as doth well enable the Commissioners for charitable uses to Decree the whole First That it hath been generally held that the Statute of 43. Eliz. for charitable Uses doth supply all the defects of assurances where the Donor is of a capacity to dispose and hath such an Estate as is any ways disposeable by him And upon this ground it hath been held That if a Copyholder doth dispose of Copyhold lands to a charitable use without a Surrender or if Tenants in tayl do convey land to a charitable use without a Fine or if a reversion be granted without Attornment or Inrolment and divers other the like cases yet these defects are supplied by the Statute of 43. Eliz. because the Donor had a disposing power of the Estate and this is a good limitation and appointment within this Statute But it is true if an Infant Lunatick or any other person who hath not capacity to dispose an Estate shall grant to a charitable use this defect is not supplied by this Statute and this difference is resolved in Collisons Case 15. Jacob in the Lord Hobarts Reports folio 136. Secondly the words of the Statute of 43. Eliz. are very considerable in this Case for although the Statute doth give power to the Lord Chancellor or Lord Keeper upon complaint to them made to adnull diminish alter or enlarge any Decree made by the Commissioners for charitable uses yet the same is with this limitation so far as may stand with Equity and good conscience according to the true intent and meaning of the Donor and Founder thereof Whereby it doth appear that in all Gifts Appointments Limitations and Assignments within that Statute speciall regard is to be had to the intent of the Donor and this power of adnulling diminishing altering or enlarging Decrees made by the Commissioners for charitable uses is appropriated solely to the Lord Choncellor or Lord Keeper and not to any other and to proceed therein according to Equity and good conscience Thirdly the Case of G. L. Hillar 13. Jac. reported by the Lord Hobart fol. 136. doth resolve the point in question Where the Case being that G. L. being seised in Fee of lands in Cardigan 1571. in August 25. Eliz. Devised the same land to A. his wife for life and after to J. his daughter for life and after these lives ended to the principall Fellows and Schollars of Jesus Colledge in Oxford and their successors to find a Schollar of his Blood from time to time and dyed the lives ended B. L. the Heir of G. L. being the Kings VVard entred and upon a Case made hereof in the Court of Wards and by order of that Court brought to the Lord Hobard then Chief Justice of the Common Pleas and the Lord Chief Baron Tanfield to be resolved of by them who agreed and so certified that the Devise was void in Law because the Statute of Wills did not allow Devises to Corporations in Mortmain yet they held it cleerly within the relief of the Statute of charitable Uses of 43. Eliz. under the words limited and appointed and so it was Decreed that the Colledge should enjoy it against the Ward and his Heirs The Case of Collison 15. Jac. Reported likewise by the Lord Hobard fol. 136. Resolved the point in question where the Case being That Collison 15. Hen. 8. Devised a House in Etham in Kent to L. his Wife for life and after her death made J. K. and others Feoffees as he called them in the said House to keep it in reparations
appointed to govern or direct such Lands Tenements or things disposed to any the uses aforesaid neither to any Colledge Hospitall or Free-school which have speciall Visitors or Governors or Overseers appointed them by their Founders Provided also and be it enacted by the Authority aforesaid that neither this Act nor any thing therein contained shall be any way prejudiciall or hurtfull to the jurisdiction of the Ordinary or power of the Ordinary but that he may lawfully in every cause execute and perform the same as though this Act had never been had or made Provided also and be it enacted That no person or persons that hath or shall have any of the said Lands Tenements Rents Annuities Profits Hereditaments goods Chattels Money or Stocks of Money in his hands or possession or doth or shall pretend Title thereunto shall be named a Commissioner or a Iuror for any the causes aforesaid or being named shall execute or serve in the same And Provided also That no person or persons which hath purchased or obtained or shall purchase or obtain upon valuable consideration of Money or Land any Estate in or Interest of in to or out of any Lands Tenements Rents Annuities Hereditaments Goods or Chattels that have been or shall be given limited or appionted to any of the charitable Vses above mentioned without fraud or covin having no notice of the same charitable Vses shall not be impeached by any Decrees or Orders of Commissioners above mentioned for or concerning the same his Estate or Interest And yet neverthelesse be it enacted that the said Commissioners or any four or more of them shall and may make Decrees and Orders for recompence to be made by any person or persons who being put in trust or having notice of the charitable Vses above mentioned hath or shall break the same trust or defraud the same Vses by any conveyance gift grant lease demise release or conversion whatsoever and against the Heirs Executors and Administrators of him them or any of them having assets in Law or equity so far as the same assets will extend Provided always that this Act shall not extend to give power or authority to any Commissioners before mentioned to make any Orders Iudgements or Decrees for or concerning any Mannors Lands Tenements or other Hereditaments assured conveyed granted or come unto the Queens Majesty to the late King Hen. the 8. King Edw. the 6. or Q. Mary by Act of Parliament surrender exchange relinquishment escheat attainder conveyance or otherwise And yet neverthelesse be it enacted That if any such Mannors Lands Tenements or Hereditaments or any of them or any Estate rent or profit thereof or out of the same or any part thereof have or hath been given granted limited appointed or assigned to or for any the charitable Vses before expressed at any time since her Majesties Reign that then the said Commissioners or any four or more of them shall and may as concerning the same Lands Tenements Hereditaments Estate Rent or Profit so given limited appointed or assigned proceed to enquire and to make Orders Iudgements and Decrees according to the purport and meaning of this Act as before is mentioned in the last said mentioned Proviso notwithstanding And be it further enacted that all Orders Iudgements and Decrees of the said Commissioners or of any four or more of them shal be certified under the seals of the said Commissioners or any four or more of them either into the Court of the Chancery of England or into the Court of the Chancery within the County Palatine of Lancaster as the case shall require respectively according to their severall jurisdictions within such convenient time as shall be limited in the said Commission And that the said Lord Chancellor or Lord Keeper and the said Chancellor of the Dutchie shall and may within their said severall jurisdictions take such order for the due execution of all or any of the said Iudgments Orders Decrees as to either of them shall seem fit and convenient And that if after any such certificate or certificates made any person or persons shall find themselves grieved with any of the said Orders Iudgments or Decrees that then it shall and may be lawfull to and for them or any of them to complain in that behalf unto the said Lord Chancellor or Lord Keeper or to the Chancellor of the said Dutchie of Lancaster according to their severall jurisdictions for redresse therein and that upon such complaint the said Lord Chancellor or Lord Keeper or the said Chancellor of the Dutchie may according to their said severall jurisdictions by such course as to their wisdome shall seem meetest the circumstances of the case considered proceed to the examination hearing and determining thereof and upon hearing thereof shall and may adnull diminish alter or enlarge the said Orders Iudgements and Decrees of the said Commissioners or any four or more of them as to either of them in their said severall jurisdictions shall be thought to stand with equity and good conscience according to the true intent and meaning of the Donors and Founders thereof and shall and may tax and award good costs of suit by their discretions against such persons as they shall finde to complain unto them without just and sufficient cause of the Orders Iudgements and Decrees before mentioned The heads of the Statute of Charitable Uses BY this Statute Authority is given to the Lord Chancellor or Lord Keeper and to the Chancellor of the Dutchy respectively to grant Commissions under their severall seales Concerning these Commissions these six things are to be observed 1. The number the Commissioners must be four or more 2. The Commissioners must be the Bishop and Chancellor of the Diocesse if there be a Bishop and other persons of good and sound behaviour 3. In that Commission any four of them doe suffice to make Orders and Decrees for therein none is of the Quorum 4. None shall be Commissioners that have any part of the Land c. or goods or chattels money or stocks in question 5. The Commission is to limit a certain time within which the Commissioners are to order decree and certifie 6. Their Authority is to enquire as well by the Oaths of twelve men or more as by all other good wayes and means Concerning the Jurors or Enquest of enquiry these two things are to be observed 1. The parties interessed may have their lawfull challenge and challenges 2. None that pretend title to any of the lands c. goods chattels money or stocks in question shall be a Juror c. They are to enquire of all and singular gifts limitations and appointments of any Lands Tenemens Rents Annuities Profits Hereditaments Goods Chattels Money Stocks of money for 21 Charitable uses in relieving maintaining repairing educating preferring marrying supporting aiding helping redressing and easing 1 For reliefe of aged and impotent and poor people 2 For maintenance of sicke and maymed soldiers 3 Schools of Learning 4 Free
Christian souls and that the Feoffees or their Assignes should expend yearly at every Obit so kept and for his Name to be had in the Bedroll 6 s 8 d And that all other issues and profits coming and growing of the said Tenement Lands and other the Premisses with the Appurtenances over and above the said Edifices and reparations and the said 6 s 8 d for the said Obit and Bedroll should be expended distributed and laid out in making and mending of the Highways between H. in the said County and the City of L. and in other deeds of Piety and Charity by the discretion of two of the said Feoffees Provided always that the profits of all Woods and Wood-sale that should come and grow of the Grove called R. should be distributed one time to the use of the aforesaid Parish Church of E. and at another time to the use of the Parish Church of T. G. aforesaid the profits of the first Wood-sale to the use of the Parish Church of E. And further that two Persons being Feoffees of and in the said Tenement and Lands and other the Premises with the appurtenances should take and levie to the uses aforesaid all the issues and profits of the same and to distribute and dispose them in manner and form as the said J. B. hath before willed and declared Provided always that no person which should have the levying and gathering of the same issues and profits of the said Tenements Lands and other the Premisses with the Appurtenances should levie and gather them over and above one whole year together but that yearly an Election to be made of two persons of the said Feoffees to be Renters and Gatherers of the said issues and profits to the use and intent before expressed And that the said persons so elected and named Renters and Gatherers should yearly give up their accompt before the residue of the said Feoffees which shall stand seised of and in the said Tenement Lands and other the Premisses with the Appurtenances or before the most part of them on the day of Saint J. in Christmas week and that every person so levying and gathering the said issues of the said Tenement and Lands shall have for their labour and businesse in that behalf 12 d And that such persons as were seised and infeoffed at the making and declaring of his said Testament and last Will of in the said Tenement Lands and other the Premises with the Appurtenances should make an Estate and Feoffment of and in the same unto twenty four honest persons dwelling and inhabiting within the aforesaid Parishes of E. and T. G. And that the said twenty persons and their heires should stand seised and enfeoffed of and in the said Tenement Lands and other the premises with the appurtenances to the use and performance of the said Testament and last Will of the aforesaid I. B. And at such time and when it should fortune the said twenty four persons to decease or void the said Parishes to the number of eight persons so that there were not liveing and inhabiting within the said two Parishes of the said Feoffees over and above eight persons That then the said eight persons so surviving and inhabiting should make an Estate and Feofment of the said Tenement Lands and other the premises with the appurtenances unto twenty four honest persons dwelling and inhabiting within the said Parishes To have and to hold the said Tenement Lands and other the Premises with the appurtenances unto the said twenty four and to their heires to the use and performance of the said Testament and last Will of the aforesaid I. B. And as often as it shall happen the said Feoffees to come to the number of eight in form aforesaid The same eight persons so often to make an Estate and Refeoffment of the said Tenement Lands and other the Premises with the Appurtenances to twenty four honest persons of the said Parishes and so from time to time as often as any such case shall happen or fall for evermore as by a certain Indenture bearing date the 29. day of D. in the year of our Lord God 1518. and in the said tenth year of the Reign of King H. the eighth now shewed forth in evidence to the said Jurors by the present Feoffees of the said Tenement and Premises more at large it doth and may appear And the said Jurors do further say upon their oathes that the said I. C. R. A. and others the Trustees aforesaid being so seised of the said Tenement Land and Premises in Trust as aforesaid They the said I. C. R. A. and others the Trustees aforesaid did by a certain Deed or Writing bearing date on or about the said twentieth day of D. in the said tenth year of the Reign of the said King H. the eighth convey the said Tenement Lands and Premises with the Appurtenances unto I. A of E. aforesaid Mercer and I. W. of the same Yeoman their Heires and Assignes to fulfil the Will of the said I. B. And that they the said I. A and I. W. being of said Tenement Lands and Premises with the Appurtenances seised They the said I. A. and I. W. did by their Deed of Feoffment executed by Livery and Seisin bearing date the said 29. day of D. in the said tenth year of the Reign of the said King H. the eighth convey the said Tenement Lands and Premises with the Appurtenances unto R. A. of T. G. aforesaid R. A. and W. A. sons of the said R. W. A. the elder F. A. son of the said W. A. the elder T. T. alias T. R. I. T. son of the said T. T. H. A. son of the said I. A. H. B. R. B. son of the said H. B. W. N. the younger I. P. W. P. sons of R. P. R. P. the younger T. M. the elder of T. G. aforesaid T. T. son of H. T. W. C. W. S. W. A. son of I. A. W. S. I. S. son of the said W. S. T. S. I. S. son of the said T. S. I. W. son of R. W. I. B. the elder H. H. the younger and S. son of W. S. W. B. son of B. B. and I. P. of E. aforesaid as by the said last recited Deed of Feoffment now also shewed forth in evidence to the said Jurors by the said now present Feoffees of the said premises may appear And the said Jurors do further say upon their oathes That about N. in the sixth year of the Reign of the late Queen Eliz. H. A. and R. A. sons of W A. deceased I. R. and I. R. son of the said I. F. A. and R. A. son of the said F. S. A. son of H. A. deceased I. W. son of I. W. deceased I. A. son of I. A. of B. deceased W. C. son of W. C. of T. G. aforesaid W. A. and I. A. and I. A. son of the said W. S. A. and T. A. sons of the said H. A. deceased I. S. and A. S. son of
not also payd to the charitable use that is breach of trust which the Commissioners may reform if no other use of imployment of the revenue be expressed in the Donors Deed Fifthly resolved if Land be given to a Corporation or other particular persons to perform a charitable use and the Donor appoint them Visitors also of the use according to his intent if the said Visitors do break the trust either in detaining part of the revenue misimploying or any other ways defrauding the charitable use this may be restored by Decree of the Commissioners notwithstanding the Statute of 43 Eliz. which disables Commissioners to meddle with Lands given to charitable uses where speciall Visitors are appointed for the intent of the Statute is to disable Commissioners to meddle with such a case where the Land is given to persons in trust to perform a charitable use and the Donor appoint speciall Visitors to see these trustees to perform the use according to his intent if the Trustees defraud the trust the Commissioners cannot meddle but the Visitors are to perform it but where the Visitors are Trustees also there the Commissioners may by their Decree reform the abuse of the charitable use Hynshaw and Pydwers the Mayor of the Corporation of Morpeth in Northumberland 5. Car. KIng Edw. 6. gives Land to the Mayor and Commonalty of Morpeth of the value of 20 l per ann. to maintain a School-master there and appoints them Visitors of the School-master and Schollars that they behave themselves according to his Orders this Land increaseth to 100 l by the year and the Corporation did onely bestow on the School-master the 20 l per ann. accordding to the value at the time of the first Gift A commission is granted to reform this breach of trust and the Corporation upon summons refused to appear before the Commissioners for that they are appointed Visitors and the Proviso of the Statute doth exempt in such cases the power of the Commissioners the Commissioners certifie this to the Lord Keeper and that the Visitors were the persons trusted and did break the trust and Serjeant Thomas Crew moving the Lord Keeper upon this Certificate the 22 of May 5 Car. the Lord Keeper declared his opinion to be that the Commissioners might proceed in the execution of their Commission for the Visitors being Trustees and Parties breaking the Trusts are not within the intent of the Proviso and if it should be otherwise construed this breach of Trust would escape unpunished unlesse in Chancery or in Parliament which were a tedious and chargeable Suit for poor persons And the Lord Keeper said That the not bestowing of the increased value of the Land given was a breach of trust in the Corporation if no other use be expressed in the Letters Patents Also it was then said If Land be given to maintain a charitable use for relief of poor and also that the School-master or poor shall pray for the Donors soul that the charitable use shall be said the principall intent of the Donor and the praying for his soul but an accessary and therefore the charitable use shall support and preserve the Land The Case of the Inhabitants of Woodford in Essex against Parkhurst Hill 14. SIr Henry Leigh did purchase Copyhold lands in Woodford in the name of two of his younger sons and their Heirs they being within age and by his Will Deviseth to Sir William Martin and other Parishioners of Woodford and their Heirs a Rent-charge of 40 s per annum out of this Copyhold land for relief of the poor there and dyes Sir William Martin purchaseth this land and enjoyes it for many years and then sells the land unto Packhurst and his Heirs Parkhurst hath notice of the Charitable use between the Surrender and his admittance the Commissioners Decree Parkhurst to pay all the arrerages since Sir Henry Leighs death and upon his appeal the Lord Keeper resoved these points First that the Rent is well Devised although Sir Henry had nothing in the land in strictness of Law for that the Estate in Law was in the children yet Sir Henry making the Purchase and enjoying the land as owner and receiving the Profits of it he shall be said in Equity to have power to dispose to a Charitable use Also it being objected that there wanted a Surrender to enable him to Devise the Lord keeper said yet the Devise was good enough and shall be said a good gift limitation and appointment within the Statute in favour of Charitable uses Secondly resolved that the Rent although it was extinct in Law by Sir William Martin purchased yet by the Commissioners Decree it is revived Thirdly Resolved the Rent is not extinct by this Purchase although he had no notice of the same for that the Purchase is of another thing then was given to the Charitable use Fourthly Resoved that the Rent is a charge which goes with the Land in whose hands soever it comes and a Distress may be taken for the arrerages upon the ter-tenant for the time it was arrear in others hands and the owners remedy to have contribution against all others that enjoyed the Land before him is by Suit in Chancery and here Parkhurst by the Decree had contribution against all others that enjoyed the Land charged and suffered arrerages to accrew in their time Lastly Resolved that the notice of the Rent given to Parkhurst after the Surrender and agreement for the Purchaser and before his admittance was a sufficient notice within the Statute if notice in this case had been requisite for that Parkhurst was no compleat and absolute Purchasor before admittance so of notice given to a Purchasor of a Charitable use chargeable upon the Land mean between his agreement and sealing of the Writings before the perfecting of the settling of the Estate in him by Attornment Livery or Inrolment of the Deed of Conveyance Hennington Hastings in Com. Warr 6. Jacob ONe Humfrey Davis erected an Almshouse in Hennington Hastings for eight poor men and being Seised of lands in Tennington Monton and â—urbery then let for 10 l Rent per annum doth devise the rents of his said lands for maintenance of the said poor in the said Almshouse and dyes his heir paies the Ten pound yearely for maintenance of the poor at the Almshouse and at the end of the term doth Demise the land at 40 l per annum The Commissioners doth Decree the whole land for maintenance of the Charitable use and the arrerages of the improved Rent taken by the Heir from the time of the expiration of the old Lease until the Decree and that the new Lease shall be void and surrendred and upon the Heirs appeal in Chancery and acceptions taken to the Decree the Lord Keeper referred the Case to the Judges principally whether if one Devise the Rents of his Land to a Charitable use if by this Devise the Land passed and they certified their opinions that by Devise of the Rents of the
lands to a Charitable use the land it self did passe and in twelve Jac. in the Case of one Kerry and Dethick it was adjudged that if one Devise to another and his Heires the Rents and Profits of his Lands that this is a Devise of the Land it self also they resolved that when one Deviseth the Rent of his Land to a Charitable use it shall be taken largely for a Devise of the Rent then reserved or afterwards to be reserved upon an improved value and the Lord Keeper did afterwards confirm the Commissioners Decree in all things The Schoole of Thetfords Case upon a Bill exhited in Parliament 8. Jacobi 8. Coke fol. 130. LAnd of the value of 35 l by the year was by Sir Thomas Fulmerston 9. Eliz. Devised to certain persons in Trust and their Heirs for maintenance of a Preacher Schoole master and poor people in Thetford and by the Will a special distribution was made how much the Preacher Schoole-master and poor should have amounting in the whole unto 35 l by the year which was the value of the Land at the time of the Devise and afterwards the land increaseth to be by the value of 100 l by the year and upon a Reference to the Chief Justices and Judge Walmsley they certified their opinions that the Revenew of the Lands shall be imployed to increase the several stipends of the persons appointed to be maintained by the Devisor and if any surplusage do remain it shall be imployed for the maintenance of a greater number of people and nothing shall be converted by the Devisees to their own use for that it appeareth by the distribution of the Devisor that he intended that all the Profits of his lands shall be imployed in the Charitable works by him Founded and left nothing to his Heirs or Executors of the Profits of his Lands as they were in value at his death and as if the value of the Lands had decreased the poor should have lost in their stipends so when the Revenue of the Revenue of the Lands increase they shall gain and the Lord Coke said that this resolution did concern all the Colledges in the Vniversities and elsewhere for when the lands were first given for their maintenance and that every Scholler should have a penny half peny a day this was then a competent allowance for a Scholler in respect of the price of victuals then and yearly value of the Land and now the price of victuals being increased the first maintenance for Schollars is not competent for them and as the value of the lands increase so ought the allowance for the Schollars to increase for the Colledges seised in Jure Collegii to the intent that the members of the Colledge shall be maintained according to the intent of the Founder which is that all the Revenue and Increase of the Profits of their Lands shall be bestowed in the works of Charity which the Founder hath expressed and that nothing should be committed to any other private uses for panis egentum est vitae pauperum qui defraudat eos homo sanguinis est and upon conference with all the Judges of England they agreed to the opinion of both the aforesaid Judges and both Houses of Parliament passed the Bill accordingly and the King assented to the Bill Dame Billingsleys Case 12. Jac. THe Lady Billingsley being a feme covert and Administatrix unto Martin her first husband made her Will and gave 400 l unto Charitable uses out of 1800 l debt due unto Martin upon a Statute and dyes Administration of Martins goods is committed unto others the Executors of the Lady Billingsley prove the Will and have asseâ—â— Commissioners for charitable uses make a Decree against the Executors for payment of the 400 l given by her unto the Charitable use Upon an Appeal the Executors take exception against the Decree first that the Will is void being made by a feme covert for that the Demise of the Charitable use is to be paid but of money due upon a Statute which is a thing in action and the Administrators of Martyn have now the debt out of which the charitable use ought to be payd but the Lord Keeper did confirm the Decree and declared that the Will of a Femecovert is not meerly voyd unlesse her Husband did contradict it and it shall stand good in this case and be a good Declaration of money to a charitable Use within the Statute Secondly this Declaration shall be good to charge her Executors to pay the charitable use it being found that they have Assets and they shall be liable to pay it out of her Estate but it shall not charge the Administrators of Martin for that they be Administrators to another and claimed immediately from Martin above the Will Decimo quinto Jac. Collisons Case COllison seized of Lands in Fee in Pape street of Eltham in 25 H. 8. Deviseth the Rents of his Lands to his Executors for reparations of High ways within the Parish for ever and upon a Reference to Mountague and Hoboard chief Justices out of the Chancerie they certified that this was a good Demise of the Land and that if one do Demise the Rents and profits of his Lands to another and his Heirs this is a good Demise of the Land it self Secondly although this was a voyd Demise in Law because it was made in 25 H. 8. at which time no Land was Demisable by the Common Law but customary Land and the Statute of 32 34 H. 8. were made divers years after yet by the Statute 43 Eliz. it is made good and shall be taken within that Statute for a good limitation and appointment to a charitable use and it was Decreed according to their certificate Sir Tho. Middletons Case 1617. SOldiers and Marriners by a voluntary contribution amongst themselves abates out of their wages of six shillings a Month 4 d by the Month and he which taketh five shillings by the Month 3 d by the Month and appoints this to be payd to Sir Tho. Middleton to the intent that he shall imploy it for relief of maimed Souldiers and Marriners upon the Seas their wives and children and Sir Tho. receives by this appointment 400 l which he keeps in his hands about twenty years This voluntary contribution was made by the Marriners and Soldiers attending Sir Francis Drake and Sir John Hawkins in their voyages to the West Indies upon a Commission upon the Statute of Charitable Vses this voluntary agreement and constitution of the Souldiers and Marriners was proved before them and that Sir Tho. Middleton had received by reason thereof 400 l which he had detained in his hands twenty years The Commissioners make a Decree for payment of the said money with some damages and upon Appeal to the Lord Keeper he confirmed this Decree Rivetts Case 15 Jac. A Copyholder of Land in Fee Deviseth the same to a charitable Use without a surrrender Commissioners make a Decree for the Land and
upon Appeal the Decree was confirmed for although it be a voyd Devise by the common Law yet it is a good limitation and appointment of Land to a charitable use and it shall bind the Heir but not the Lord for his Fine This Devise was made unto the Devisors Son and Heir and his Heir upon condition that he and his Heirs should imploy the profits of the Land for the relief of Stow Market in Suffolk and after the Devisor died without a Surrender to the use of his Will In 6 Jac. the Heir having sold the Land to one Flick for valuable consideration of money sues out a Commission upon the Statute of charitable Vses by fraud and covin between him and Flick to discharge this Land of the charitable use upon which Commission it was proved before the Commissioners that Flick had any notice of this charitable use but it was proved that the Heir that sold the Land had Assets both in Law and Equity to give allowance out of his Estate to maintain this charitable use whereupon the Commissioners Decreed that the Son and Heir should grant out of his own Land the summ of five Marks and to maintain this charitable use it being then proved that the Land Devised for the charitable Use was of no great value and they further Decree that Flick should hold his Land discharged of the charitable use And this Decree being certified into the Chancery and prosecuted by the Heir and Flick with intent to discharge the Land Devised of the charitable use the Lord Keeper confirmed it Afterwards the Parishoners of Stow Market having notice of this fraud and that the Land Devised was worth 7 l 10 s per ann. they in 14. Jac. sue out another Commission upon the said Statute and before the Commissioners it was proved that Flick had notice of this charitable use before he bought the Land Secondly it was proved that the first Commission was sued out by fraud and combination between the Heir and Flick on purpose to discharge the Land Devised of this charitable use Thirdly it was proved that the Land Devised was worth 7 l 10 s per an. And fourthly that the Heir had not payd the 5 Marks Decreed by the former Commission to be payd upon all which proofs the latter Commissioners Decree Flicks Land for maintenance of the charitable use appointed and the Jury having found the former Commission to be prosecuted by fraud and combination as aforesaid they Decree that Flick shall pay the full value of his Land by the year to the charitable use from the time of his Purchase And lastly they Decree that the Heir that ought to have paid the 5 Marks per ann. for divers years and hath not paid it at any time should pay the arrerages and then his Land to be discharged from further payment of it This latter Decree being certified in the Chancery Flick took exception that the second Commission issued out illegally there having been a former Commission and Decree to discharge the Land of the charitable use which was confirmed by Decree of this Court which ought to be finall and is not to be reversed but in Parliament according to Andrew Hynstors Case before and if a Commission upon a Commission should issue out upon this Statute such multiplicity of Suits would arise as that it would prove inconvenient and multiplicity of Suits is not allowed in Law But the Lord Keeper did confirm the second Decree because of the fraud and combination between the Heir and Flick in suing out the first Commission which was found by the Jury and proved before the L. Keeper and therefore he now reversed the first Decree and confirmed this for that by the Law Fraus dolus nemini patrociniam debet but if a Decree be legally made without fraud by the Commissioners for charitable uses and upon Appeal this is confirmed in the Chancery and where a Decree is made by Commissioners for charitable uses and this Decree confirmed in Chancery if the Decree be not performed accordingly now no Commission need be sued out for upon an Affidavit made of a breach of the Decree an Attachment and other Proces of course is to issue out to compell the parties concerned to perform the Decree yet if a second Commission do issue out it is not illegall if nothing be decreed against the first Decree and upon this second Commission they are to decree by form of the first Decree if they find a breach Barnard Hides Case TRinity 4 Car. Barnard Hides Case against the Parishoners of Gillingham Darford and Sutton in Kent Katherine Banne grants by Deed a Rentseek out of 208 acres of Land for relief of the poor in those Parishes and limits this to commence after her death and gives seisin of this in her life the Rent is behind for thirty six years Hide Purchaseth the Land having notice of the charitable use and in the Grant there was a nomine poenae of 50 s if the Rent be not paid by her Heirs within fourteen days after it was due by the Grant and it was found that Hide had held the Land seven years upon a Commission for charitable uses the Commissioners Decree that Hide shall pay all the arrerages for thirty six years and also the arrerages of the nomine poenae for seven years being the time he had enjoyed the Land and Decree that the Grantor shall distrain for the Rent for ever after And the Commissioners Decree being returned in Chancery the Lord Keeper referred it to the Judges who resolved these points First that Hide should pay all the arrerages for thirty six years for that the Land is chargeable with the Rent in whose hands soever it cometh Secondly that the seisin given by the Grantor in her life is good although the Rent did not commence or was in esse at the time of the seisin given Thirdly if Land or Rent be given to a charitable use and misimployed a Purchasor which hath notice of the Gift shall not be further charged then during his own time but where the Rent is concealed a Purchasor shall answer for all the time of the concealment for the Land is a Debtor transit cum onere Fourthly if a Rent be granted out of Land to a charitable use and one buys the Land for a valuable consideration of money having no notice of the charitable Use and Rent yet the Rent remains because it is collaterall to the Land and another thing and the notice required by the Statute is to be given as well of the Land as of the charitable use Fifthly resolved that the Purchasor shall not pay the arrerages of the nomine poenae because it was a personall charge upon the Heir who ought to have paid the Rent and it doth not charge the Land Sixthly when the Heir or others charged to pay a charitable use do break the trust the Commissioners may transfer the trust unto others as to the Churchwardens or
other Parishoners of the Parish where the charitable use is to be distributed Lastly it was resolved that if a Rent seek be granted to a charitable use the Commissioners by their Decree cannot make this a Rent-charge by adding a clause of distresse unlesse it be for that this alters the nature of the Rent in the creation of it and is against the mind of the Donor Mich. 14. Car. Plate and the Masters and Fellows of St. Johns Colledge in Cambridge PLate being seised of Copyhold Land in tayl in Highgate in Midlesex surrenders this in Court to the use of his Will and suffers a Recovery in the Court of the Mannor in which no Judgement is given against the Vouchee and after Deviseth by his Will this Copyhold Land and all his Free-hold Land to his wife for life the remainder to the Master and Fellows of St. Johns Colledge in Cambridge for maintenance of the Schollars there the Heir of Plate enters upon the wife to avoid the Devise and the Master and Fellows prefer a Bill in Chancery to preserve their interest and to have the Devise to them confirmed The Lord Keeper Littleton resolves that if no Judgement be given against the Vouchee to have in value in case of a common recovery to cut off an Estate tayl that it is a voyd recovery and will not cut off an Estate tayl and as to the wife to whom the Land was Devised for life the Heir had liberty given by Law to evict them but as to the Colledge and the remainder limited to them the Lord Keeper did declare that the Devise is good to them by the Statute 43 Elizabeth touching Gifts Limitations and appointments of Lands to charitable uses for there is gift and limitation of the Land to a charitable use which shall not be avoided for want of circumstance of Law to make it good and also the Lord Keeper said that although the Colledge was incorporated by another name then the Devise was to them and therefore might not be capable of it yet the Devise is good to them by the said Statute also if the Heir avoyd the Estate tayl against the Wife at Law yet the remainder to the Colledge shall stand good and be a remainder without a particular Estate which by rules of Law cannot be but these defects in cases of charitable uses are made good by that Statute by a benigne and favourable interpretation thereupon for maintenance of Charity as it is in other cases upon Statutes for Piety and Charity 13 Jacobi Jesus Colledge Case in Court of Wards referred to the Judges DOctor Floyd seised of Lands in Capite Deviseth them to Jesus Colledge in Oxford and their Successors to find a Fellow there which should be of his blood and alliance and it was referred to the Judges Whether this Devise be good or no and they resolved and certified that by the Common Law and Statute of Wills the Devise was void for these Statutes enabled persons to Devise their Lands excepting to Corporations for that is Mortmain also none can Devise all their Capite Lands to any but must leave a third part to descend but they certified and resolved that although it be voyd by the Common Law yet the Statute of 43. Eliz. for charitable Vses doth make this good as a limitation and an appointment and that it was good for all the Land But if an Infant or Lunatick who by Law is disabled to make a Will or Devise of his Land do Devise his Land to a charitable use this is voyd and not made good by the Statute for want of a capacity to make a Will by Law The Lord Edward Mountagues Case in the Court of Wards 17. Jac. SIr Walter Mountague seised in Fee of Capite Lands in Hanging Houghton in Northamptonshire conveys two parts of these lands unto uses limited within the Statute of 32. and 34. H. 8 and by his Will deviseth the third part remaining in him for maintenance of a charitable use in Wales and upon a reference unto Hobart and Tanfield they resolved this Devise to be voyd and was not aided by the Statute of 43. Eliz. for charitable uses for in the instant of his death the Lands descended to the Heir and the Devisor having disposed of two parts in his life according to the Statute of Wills he is disabled by the Common Law and those Statutes as owner of the Lands to Devise any part of his third part remaining See Doctor Floyds Case before in Jesus Colledge Case Seymor against the poor of Twyford Trinity 1634. MOney was given to charitable uses and detained a long time as concealed the Commissioners upon the said Statute Decreed the Money to be paid with interest after the rate of 8 l per cent and this Decree was confirmed by the Lord Keeper So in the Case of the Lady Mountague of Ilford and the Inhabitants of Barking in Essex Sir Charles Mountague her Husband gave by his Will 10 l to the poor of Barking and made his Wife Executrix and died she kept the Money above twelve years in her hands and the Commissioners Decreed her to pay 20 l for the detainig this Money for use and principall and the Lord Keeper Coventry confirmed this Decree about 12. The Poor of East Greenstead against Howard 8. 10. REsolved by the Lord Keeper upon Appeal to alter or confirm a Decree made by Commissioners upon the Statute of Charitable Vses the Decree is not perpetuated and not to be altered but by Act of Parliament and is to remain in the Pety Bagg and it is in his power to make a Decree good where it is defective Hungate on the part of the Inhabitants of Sherborn 3. A Debt owing by Statute Bond Judgement or Recognizance which in Law is a thing in action was given for the creation of a School and this was Decreed to be a good appointment within the Statute to maintain a charitable Use Steward against Germyn 41. Eliz. ONe having Lands and Goods appoints by his Will that the same shall be sold to maintain a charitable Use and doth not appoint by whom the sale shall be made the Commissioners do by their Decree appoint that J. S. shall sell these Lands and Goods and Decree his sale to be good and that the money to be raised thereby shall be imployed to maintain the charitable Use according to the Donors Will and this Decree was confirmed by the Lord Keeper upon an Appeal to him Hellams Case 5. Caroli A Devise was made of Lands to the Company of Leather-sellers in London to maintain a charitable Use there upon a Decree by Commissioners to settle the Lands upon the Company an Appeal was and exception taken for that the Company of Leather-sellers was a Corporation and the Statutes of Wills doth except Devises of Land to a Corporation but the Decree was confirmed there being many Presidents in it The Schoole of Rugby in the County of Warwick 2. Caroli ONe seised in
and to bestow the rest of the profits upon the reparation of certain Highways there Collison and his Wife died and the House descended to O. R. an Infant This Case being in Chancerie between the Parishoners and B. was referred by the Court to the Lord Hobart and the Lord Chief Baron Tanfield who resolved it clearly that though the Devise were utterly void yet it was within the relief of the Statute of 43. Eliz. within the words limited and appointed to charitable Vses This Decree was lately confirmed by the Lords Commissioners Keepers of the Great Seal for that it fully appeared to them that it was the true intent and meaning of A. H. the Donor that all the lands in question should go to the Hospitall Inquisitions AN Inquisition taken c. Before c. By vertue of a Commission under the Great Seal of England bearing date at Westminster the 6. day of M. in the year of our Lord God 1650. to them and divers other persons dwelling and inhabiting within the said County directed for the due execution of a Statute made in the high Court of Parliament holden the 27. day of O. in the 43. year of the Reign of our late Soveraigne Lady Queen Eliz. Intituled An Act to redresse the misimployment of Lands Goods and Stocks of Money heretofore given to charitable Vses by the oaths of c good and lawfull men of the said County of D. who being sworn c. say upon their oath That J. T. late of L. Merchant deceased was in his life time and at the time of his death possessed of a personall Estate of great value And that the said J. T. did heretofore make his last Will and Testament bearing date the tenth day of O. which was in the year of our Lord God 1649. And by the same Will did nominate constitute and appoint W. L. of T. and T. H. of L. in the County of C. Gent. the Executor of the said Will And that afterwards the said J. T. did make a Codicil which was annexed to his said last Will and Testament and which he did appoint to be part of his said Will And that the said J. T. in and by the said Codicil did among other things make such recitall disposition limitation and appointment as followeth in these words That is to say And whereas I have not finished the Almshouses by me already begun and do intend that eight poor people of the said Parish of M. shall be placed therein when finished and receive fifty shillings a piece yearly by quartery payments for their maintenance during their lives and purpose that the same shall be so continued and supplied for ever with poor people of that Parish and with that yearly maintenance Now I J. T. Testator named in the said Will do hereby will and appoint mine Executors W. L. and T. H. in my said Will named to finish the said Almshouses with all speed out of the surpluss of my Estate not disposed by the said Will nor by this Codicil and likewise therewith to purchase so much Freehold land in fee simple and settle assure the same upon Feoffees for the maintenance of eight poor people of M. Parish aforesaid for ever to be placed in the said Almshouses at M. aforesaid as shall be convenient And the Jurors aforesaid do further say upon their oaths That the said J. T. afterwards that is to say on the 22th day of D. died And that the said W. L. and T. H. proved the said Will and Codicil of the said J. T. and took upon them the execution thereof And that they the said W. L. and T. H. after the death of the said J. T. did finish the building of the said Almshouses before mentioned out of the Estate of the said J. T. And that the said T. H. did place eight poor people in the said Almshouses there But the Jurors aforesaid do likewise say upon their oaths That the said W. L. and T. H. in the said Will of the said J. T. named have not nor either of them hath out of the Estate of the said J. T. appointed or limited for that purpose or otherwise as yet purchased settled or assured Freehold Land in Fee simple of the clear yeary value of 20 l by the year as by the said Will and Codicil is intended and appointed upon Feoffees or Trustees for the maintenance of eight poor people of M. aforesaid for ever placed and to be placed in the said Almshouses as by the said Codicil is directed limited and appointed And that in further breach of the Trust in them the said W. L. and T. H. reposed in and by the said Will and Codicil They the said W. L. and T. H. have not paid unto the poor people formerly placed in the said Almshouses and now remaining there namely A B. c. their severall and respective yearly allowances of 50 s the year appointed them by the said J. T. as aforesaid by the space of two years ending at the Feast of the Annunciation of the blessed Virgin Mary last past amounting in all to the summ of 20 l but do detain and withhold the same money from them the said poor people And the said Jurors do further say upon their oaths That the said W. L. and T. H. have Assets of the said J. T. in their hands of the surpluss of his Estate not disposed of by his said Will and Codicil sufficient to purchase so much Freehold land in Fee simple as may be convenient for the maintenance of eight poor people placed and to be placed in the said Almshouses in such manner as the said J. T. hath in and by his said Will and Codicil willed directed limited and appointed In Witnesse c. AT S. in the said County the 19. day of J. in 11. year of the Reign of our Soveraign Lord Charles by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. Whereas a Commission under the Great Seal of England bearing date at West the 8. day of Febr. last hath been directed amongst others to Sir W.R. Knt. c. and to divers other persons dwelling and inhabiting within the said County authorizing them or any four or more of them to enquire as well by the oaths of twelve good and lawfull men or more of the said County as by other good and lawfull ways and means of all and singular Lands Tenements Rents Annuities Profits Goods Chattels Money and stocks of Money heretofore given limited appointed and assigned by any well disposed person to or for any the charitable and godly uses in the said Commission mentioned within the said County And of the abuses breaches of Trusts negligences misimployments not imploying concealing defrauding misconverting or misgovernment of the said Lands Tenements Rents Annuities and other things and for the setting down such Orders Judgements and Decrees as that the same Lands Tenements Rents Annuities Profits Goods Chattels Money and
the six and twentieth day of January in the thirtieth year of the reign of the late Queen Elizabeth did enter into the said Messuage and Premisses called C. and was possessed thereof and during his life took the Rents and profits thereof paying onely five Nobles per ann. out of the Rents and profits of the same Messuage and Premisses to the Churchwardens and Church of T. to the charitable use aforesaid and that E. H. Esq deceased son of the said T. also entred upon the Premisses and paid the five Nobles a yeare as abovesaid untill about twelve years last past at which time the said E. H. refused to pay it and that the same premisses is now divided into severall Tenements and that since the death of the said E. H. who died about two years before the Decree the said Exceptant T. H. Son and Heir of the said E. H. came to the said Messuage and Premisses called C. as Son and Heir to the said E. H. And the said Commissioners have ordered that the said Exceptant T. H. and his Tenants should surrender and yeild up the Possession of the said Messuage and Premisses unto the Church-wardens of T. aforesaid and to deliver up the Deeds and Evidences of the same Premisses and to pay unto the said Churchwardens the summ of twenty pounds to be imployed for the repairs of the said Church Unto which Decree this Exceptant T. H. doth except and conceives and is advised by his Counsel that he is not nor ought to be bound by the said Decree and Order made by the said Commissioners as aforesaid for the Causes and Reasons hereafter following And first For that it appeareth by an ancient Deed of Feoffment bearing date the two and twentieh day of June in the tenth year of the Reign of the late King Henry the eighth that one J. K. and J. his wife W. F. W. T. J. S. and R. M. did grant and confirm unto the before named A. B. R. F. R. F. and J. R. to the use of the said A. B. and his Heirs and Assigns forever all that the Messuage with the buildings gardens and Appurtenances called C. scituate lying and being in T. in the County of D. between c. as by the said Deed of Feoffment ready to be produced may appear Which said last mentioned Messuage and Premisses called C. is not the Messuage Lands and Premisses in the occupation of this Exceptant and his Tenants and which are charged and decreed to the charitable use by the said Commissioners as aforesaid For this Exceptant saith that the aforesaid Messuage or Tenement called C. so conveyed by the last mentioned Deed of Feoffment to A. B. as aforesaid was held of the Mannor of G. in the said County of D. by fealty suit of Court and the yearly Rent of two shillings eight pence per ann. as by the Surveys and Records of the said Mannor may appear which said Messuage and Premisses afterwards came to be the Inheritance of one R. E. and was then called by the name of C. otherwise E. Hall And this Exceptant further saith that the said R. E. being seized in Fee of the said Messuage and Premisses did upon or about the twelfth day of November in the eighth year of the Reign of the late Queen Elizabeth acknowledge a Statute of one hundred and fifty pounds unto one T. O. for the payment of the summ of one hundred and sixteen pounds at a day shortly after which was not paid which Statute was extended about the tenth day of April in the fourteenth year of the Reign of the said late Queen Elizabeth upon the said Messuage and Premisses which was aftewards assigned over unto T. H. this Exceptants Grandfather upon or about the five and twentieth day of January in the fourteenth year of the Reign of the said late Queen Elizabeth And it appeareth by the said Extent that the said R. E. had sold the said Messuage and Premisses unto one S. F. and his Heirs by Deed bearing date upon or about the twentieth day of June in the twentieth year of the Reign of the said late Queen Elizabeth And this Exceptant saith that the said T. H. this Exceptants Grandfather having the said Premisses so in Extent and the same being but of small value and the money that was owing thereupon being more worth then the said Messuage and Premisses he did by his Deed bearing date upon or about the five and twentieth day of January in the thirteenth year of the Reign of the late Queen Elizabeth grant to severall Trustees one Annuity or yearly Rent of fourty six shillings eight pence to be issuing and going out of the said Messuage called C. to be imployed for the repairs of the Parish Church of T. aforesaid which said summ of fourty six shillings and eight pence is the seven Nobles mentioned in the said Decree And this Exceptant saith that when the said Extent is ended the inheritance of the said Messuage and Premises will come unto T. F. Son and Heir of S. F. deceased as by an Office after the decease of the said S. F. found at L. the three and twentieth day of November in the four and fourtieth year of the Reign of the late Queen Elizabeth may appear which said Massuage and Premises last before mentioned if any at all ought onely to be charged with the said charitable use and none other The second Exception And secondly This Exceptant saith that the Messuage and Premises in the Decree mentioned to be in this Exceptants occupation and the other Messuages and Premises therein mentioned to be in the occupation of him this Exceptant and his Tenants are not the Messuages and Lands given to the said charitable use nor ought not to be charged therewith for this Exceptant saith that the late King Edward the sixth by his betters Patents under the great Seal of England bearing date the tenth day of April in the third year of his Reign did amongst other things give and grant unto one R. W. and W. P. and their Heirs all that his Messuage or Tenement called C. and all Lands Meadows Pastures Feedings and Hereditaments whatsover thereunto belonging then or late in the occupation of N. P. to hold of the said King as of his Mannor of C. in the County of D. in Fee-socage and not in Capite for all Rents Services and demands whatsoever And this Exceptant saith that the said Messuage called C. alias E. Hall charged and given to the said charitable use is held of the said Mannor of G. by fealty suit of Court and the yearly Rent of two shillings and eight pence as is herein before mentioned and therefore the same is differenced and plainly distinguished from the said Messuage and Premises called C. in the possession of this Exceptant and his Tenants And this Exceptant further saith that afterwards that is to say the nine and twentieth day of April in the third year of the Reign of the said
late King Edward the sixth the said R. W. and W. P. did by Deed of Feoffment and by other good Conveyances and Assurance in the Law convey and assure the aforesaid last mentioned Messuage called C. amongst other things to W. C. and J. W. and their Heirs and afterwards G. C. Son and Heir of the said W. C. who had the said last mentioned Messuage called C. by survivorship did by his Indenture of Bargain and Sale inrolled in Chancery dated the thirteenth day of October in the twelfth year of the late Queen Elizabeth bargain and sell the said last mentioned Messuage called C. amongst other things to W. L. and his Heirs and afterwards the said W. did by his Deed indented inrolled in Chancery dated the tenth of July in the thirteenth year of the Reign of the late Queen Elizabeth convey and assure the said last mentioned Messuage called C. unto T. H. and his Heirs which said T. H. was Grandfather of this Exceptant and the same is by descent and other good Conveyance and Assurance in the Law lawfully vested and come unto this Exceptant and he now is lawfully seised thereof and ought to hold and enjoy the same free from the said charitable use The third Exception And thirdly This Exceptant saith that the said T. H. his Grandfather at the time of his purchase of the said last mentioned Messuage called C. had no notice of the said charitable use and if the said Messuage were charged or chargeable therewith or liable thereunto as in truth it is not yet ought the same not to be charged therewith For that by the said Statute made in the three and fourtieth year of the Reign of the late Queen Elizabeth made for charitable uses it is provided and ordained that no Lands Tenements or Hereditaments given or appointed to any charitable uses shall be impeached by any Decrees or Orders of Commissioners for charitable uses the Purchasers having no notice of the said charitable uses The fourth Exception And fourthly This Exceptant saith that if it were true as in truth it is not That the said last mentioned Messuages called C. were charged or chargeable with the said charitable use yet ought not the said Order or Decree made by the said Commissioners any ways to impeach or charge the said Messuage or Premises with the said charitable use or any ways to deprive this Exceptant thereof For that by the said Statute made in the three and fourtieth year of the Reign of the said late Queen Elizabeth It is Enacted that the said Act for charitable uses shall not extend to give power and authority to any Commissioners for charitable uses to make any Order Judgment or Decrees for or concerning any Mannors Lands Tenements or other Hereditaments assured conveyed granted or come unto the Queens Majesty the late King Henry the eighth King Edward the sixt or Queen Mary by Act of Parliament surrender exchange relinquishment Escheat Attainder Conveyance or otherwise And forasmuch as it appeareth that the said Messuage and Premises last before mentioned called C. was by the said late King Edward 6. by his Leters Patents dated the eighth day of April in the third year of his Reign granted amongst other things unto the said R. W. and W. P. and their Heirs as is herein before mentioned And therefore if the same had been any ways given to the said charitable use as in truth it was not yet ought the same now to be free from the same by force and vertue of the said Act of Parliament The fifth Exception And fifthly This Exceptant saith that the said Commission grounded upon the said Statute to the said Commissioners directed in pursuance whereof they made their Decree is not returned into this Honourable Court into the Office of the Petty-bag as it ought to be for all which Causes this Exceptant doth humbly pray the said Order Decree may be reversed and made void and his said Messuage and Premises may be freed from the same And that this Exceptant may be dismissed with his reasonable costs and charges in this behalf wrongfully sustained Answers to Exceptions The Answer of J. L. and S. W. Church-wardens of G. T. in the County of D. Respondants to the Exceptions of T. H. Gent. by him taken to the Decree in the said Exceptions mentioned WHereas the said Exceptant doth except to and against the said Decree for that the Messuage or Tenement called C. given by the Will of A. B. therein named to the charitable use therein specified are not the Messuage Tenement and Lands in the occupation of the said Exceptant and his Tenants and which are charged and Decreed to the said charitable use And also for that the Exceptants Grandfather T. H. therein named had at the time of his Purchase of the Premises in the occupation of him and his Tenants no notice of the said charitable use and that the said Premises were heretofore conveyed by Letters Patents from King Edward the sixth And lastly for that the Commission directed to the Commissioners in the said Decree named wherein they made the said Decree was not returned into this Court at the time of the said Exception unto which Exceptions these Respondents saving unto themselves all advantages of Exception to the incertainties and insufficiencies thereof say That they are upon the matter strangers to the matters set forth by the said Exceptions having not lived very long in the said Parish and being no otherwise concerned then as Churchwardens thereof and it cannot be presumed they should know the facts and titles alledged by the said Exceptions of their own knowledge But they say that the said Exceptant was severall times summoned and heard before the Commissioners that made the said Decree and the Jury by them impannelled And he brought his Learned Counsel with him who urged before the said Jury and Commissioners who were learned in the Law and good and honest men before their Verdict given or Decree made the substance and matter of the said Exception and what ever could be alledged against the decreeing of the Premises and the same Decree was made upon a full hearing of both sides And one of the main points insisted on before the said Jury and Commissioners was the matter of the aforesaid first two Exceptions whether the Premises decreed to be charged with the charitable use were the Messuage Tenement and Lands given by the said Will yea or no it being a proper issue for a Jury of parcel or no parcel the same Premises in the occupation of the Exceptant were after a full and deliberate hearing and evidence on both sides found by the said Jury to be the same Tenements and Lands devised by the said Will And the matter of the said two next Exceptions Whether the said Exceptants Grandfather had notice of the charitable use before or at his Purchase of the Premises or that the Premises were in the Crown yea or no being also proper for a Jury