purposes But they may Decree Lands held in Capite or in Socage to a Corporation already incorporate to be Trustees to perform a Charitable use and it shall be no Mortmain Also they may Decree Lands given to charitable uses to sundry persons and their Heirs to the said uses and enable them to demise the same Lands for the best profit of the said Charitable use and that when such a number of them dye the survivers shall make a Conveyance to settle the said lands in themselves that survive and others to make up and continue the number by them appointed 6. If lands that lye in the body of a County be given to a Corporation to maintain charitable uses the Commissioners of the Country may make orders to reform the breaches of Trusts and misimployment of such lands by the Corporation Trin. 9. Caroli East-greensteds Case THese points were resolved by the Lord Coventry 1. That whereas Robert Earl of Dorset had granted a Rent charge of 330 l per ann. out of divers his Mannors and Lands in London and several Counties for maintenance of an Almshouse in East-greensted erected by himself First That if a Rent be granted out of Lands in several Counties for maintenance of charitable uses in one County The Commissioners in that County where the charitable use is to be performed may make a Decree to charge the lands in other Counties to pay an equal contribution of charge in payment of the said Rent and there needs not several Inquisitions in each County for that the Rent is an entire grant by the Deed or Will 2. If the devisees of a Rent-charge or the grantees thereof to a charitable use do purchase part of the lands out of which the rent is issuing or all the land Although in extremity of Law the Rent-charge is extinguished yet if the Commissioners Decree the Rent to be revived and settle it upon others to maintain the charitable use the Rent is revived by the said Decree 3. If a Rent-charge be granted out of land to a charitable use and the land is afterwards sold for valuable consideration of money or land to one that had no notice of the Rent yet the Rent remaineth For that the purchase was of another thing that was not given to the charitable use 4. By the Statute the parties interessed are to have notice from the Commissioners of the time and place of their sitting to execute the Commission Yet if the Commissioners make a Decree without giving such notice to the parties interessed it is good And if the parties upon their Appeal do take exception that they had not any notice of the time of the executing of the Commission from the Commissioners That shall not avoid the Decree unless they shew withal in their exception that for lack of such notice they lost the benefit of such an exception to the Commissioners or some of them or of such a challenge to a Juror expressing the cause in certain And if the Lord Keeper adjudge the cause shewen to be a sufficient exception and challenge the Decree or Orders of the Commissioners shall be adnulled and reversed without further examination for the intent of such notice to be given is That the parties interessed may make their lawful challenges to the Commissioners or Jurors as the Statute alloweth them 5. Resolved that the notice which a Purchasor of lands given to charitable uses ought to have ought to be certain and a general notice is not sufficient As if land given to charitable uses be intended to be sold by Act of Parliament and when the Bill is read in the house of Parliament it is there spoken unto and declared that the land is chargeable with a charitable use and recompence is offered otherwise to assure the charitable use then by that land and afterwards the Bill doth not passe and the Land is sold to one of the Members of the House that spake unto the Bill for money Yet this notice in Parliament is not sufficient notice within the intent of the Statute because it was not known to such a Purchasor but as a Parliament man in another capacity 6. If a Purchasor of Land given to charitable uses for consideration of money hath Legal notice of the use and afterwards selleth the Land to another for money who hath no notice of the use This second Purchasor shall hold the Land chargeable with the charitable Use for that the first Purchasor held it so and the second Purchasor coming under his Title must hold it subject to the charges the first Purchasor held it for that he claims under him But if the first Purchasor had no notice of the Use then is the Land discharged of the charitable Use and if he aftewards sell it to another for money that hath notice of the Use yet he shall not hold it subject to the charitable Use for that the Land was discharged thereof upon the first Purchase 7. That if a Rent-charge be granted to a charitale Use out of Lands in severall Counties the Commissioners are to charge this Rent by their Decree upon all the Lands in every County according to an equall distribution having regard to the yearly value of all the Lands chargeable with the Rent and cannot by their Decree charge one or two Mannors with all the Rent and discharge the residue in other Counties or places for that their Decree will then be contrary to the Will of Founders or Donors 16. Martii 4. BEtween the poor of Walthamstow in Essex and upon a Devise of money by one Colby to relieve the poor there these points were resolved First S. took exception upon his appeal in Chancery that he had no notice of the time and place of the Execution of the Commission from the Commissioners whereby he lost the benefit of his challenge to some of the Jurors that were Inhabitants in Walthamstow as being parties interessed and upon proof it appeared that the number of eighteen were sworn upon the Jury whereof three of them were substantiall men of Walthamstow and none of the poor there to take benefit by the Gift and the Lord Keeper disallowed the Exception for that it appeared fifteen others were of the Jury against whom no ception is taken and a Verdict of twelve or more is good although others of the Jury above the number of twelve dissent also the three Inhabitants were no parties interessed in the Gift and may be Jury-men they being none of the poor of the said Parish Secondly if one be authorized by a party subject to the Decree of the Commissioners for a charitable Use as a Counsellor Solicitor or Attorney to solicit and defend his Suits and notice is given to his Attorney Counsellor or Solicitor by the Commissioners of the time and place for execution of the Commission against the person so entertaining him telling and advising him to acquaint the party interessed therewith and giveth him timely notice to acquaint him accordingly 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
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
Schools 5 Schollars in Vniversities 6 Houses of Correction 7 For repaire of Bridges 8 Of Ports and Havens 9 Of Cawsies 10 Of Churches 11 Of Sea bancks 12 And of High wayes 13 For education and preferment of Orphans 14 For marriage of poor Maids 15 For supportation and helpe of young Tradesmen 16 Of Handicraftsmen 17 Of persons decayed 18 For Redemption or reliefe of Prisoners or Captives 19 For ease and aide of poore Inhabitants concerning payment of fifteens 20 Setting out of Souldiers 21 And other Taxes And the Commissioners have power to enquire of these nine things 1 Of abuses 2 Of breaches of trust 3 Of negligences 4 Of misimployment 5 Of not imploying 6 Of concealing 7 Of defrauding 8 Of misconverting 9 Of misgovernment of any lands tenements rents annuities profits hereditaments goods chattels money stocks of money given to any of the charitable uses aforesaid But this Act doth not extend to all Lands c. nor to all Goods and Chattels money or stocks of money given to any Charitable use aforesaid but certaine are exempted in these eight several Cases viz. 1 Of the Colledges and Halls in either of the Vniversities of Cambridge and Oxford 2 Of the Colledge of Westminster 3 Of the Colledge of Eaton 4 Of the Colledge of Winchester 5 Of any City or Town corporate where there is a speciall Governour or governours of such Lands 6 Of any Colledge Hospitall or Free-school which have speciall Visitors or Governors or Over-seers appointed to them by the Founders 7 Of Purchasors having these three qualities 1 For valuable consideration of money or land 2 Without fraud or covin. 3 Having no notice of the same charitable use But albeit the Commissioners cannot make a Decree against any such purchasors yet may they make Decrees for recompence to be made by any person or persons who being put in trust or having notice of the charitable Uses abovesaid have or shall break the said trust or defraud the same uses by any conveyance gift grant lease release or conversion and against his or their Heirs Executors Administrators having assets in Law or Equity so far as the same assets will extend 8. Of purchasors of Lands Tenements and Hereditaments assured conveyed or come to Queen Elizabeth Queen Mary Henry 8. or Edw. 6 by Act of Parliament surrender exchange relinquishment escheat attornment conveyance or otherwise but if any such Mannors Lands c. have since the beginning of Queen Elizabeths Reign been given c. to any of the charitable uses before expressed then this Act doth extend to the same Concerning the Certificate of the Commissioners these four things are to be observed 1. That they certifie their Order and Decree respectively either into the Court of Chancery of England or into the Chancery of the County Palatine of Lancaster as the case shall require 2. That it ought to be in Parchment under the hands and seals of the Commissioners 3. It must be within the time limited in the Commission 4. That the Lord Chancellor or Lord Keeper and the said Chancellor of the Dutchie shall and may within their severll jurisdictions take such order for the due execution of all or any of the said Judgements Decrees and Orders so certified as to either of them shall seem fit and convenient In the Remedie for the parties grieved with such Decrees so certified these five things are to be considered 1. That he complain to the Lord Chancellor or Lord Keeper or to the Chancellor of the Dutchie according to their severall jurisdictions for redresse thereof And this Complaint is to be by Bill 2. Vpon such complaint first they shall respectively by such course as to their wisdomes shall seem meetest the circumstances of the case considered proceed to the hearing examination and determining thereof and upon hearing thereof shall or may adnull the whole diminish part or enlarge that is confirm the former and enlarge the same by adding something thereunto the Judgements and Decrees so certified 3. As shall be thought to stand with equitie and good conscience 4. According to the true intent and meaning of the Donors and Founders thereof and this is lapis ductitius whereby the Commissioners and Chancellors must steer their course 5. And shall and may tax and award good costs of suit by their discretion respectively against such persons as shall complain to them respectively without just and sufficient cause of the Orders Judgements and Decrees before mentioned But this Order being given and limited by an Act of Parliament no costs if the Order Judgement or Decree be adnulled diminished or enlarged ought to be given to the partie complaining Proceedings upon the Statute of charitable Uses A Warrant to call the Parties interessed in the Goods or Lands misimployed to appear before the Commissioners WHereas by a Commission under the Great Seal of England bearing date at Westminster the 21 day of July 1659. We whose names are hereunder written for the due execution of a certain Statute made in the fourty third year of the Reign of the late Queen Elizabeth Entituled An Act to redresse the misimployment of Lands Goods and Stocks of Money heretofore given to charitable Vses are among others authorized and impowered to make such enquiring Orders Judgements and Decrees touching the Premisses as in the said Statute and Commission are mentioned And whereas complaint hath been made unto us by divers of the Inhabitants of C. in the County of E. That the rents issues and profits of certain Messuages and Lands in great Chesterford in the said County heretofore given and appointed by one T. H. deceased for the aid of the Inhabitants of C. aforesaid touching the payment of Fifteens reliefe of the poor and maintenance of the Highways and other charitable Uses there have been misgoverned misemployed misconverted by you of which they desire that enquirie and redresse may be made Now according to the directions of the said Statute and Commission we do hereby give you notice of the said complaint and also that we do intend to meet for the execution of the said Statute and Commission and to make enquirie of and touching the matters complained of as aforesaid on the twentieth day of July at the house of T. W. in G. in the said County of E. at which time and place we do desire you to be present to make your defence therein if you shall think it expedient So fare you well Your loving friends A. B. C. D. E. F. G. H. To the Sheriff of the County of E. BY vertue of a Commission under the Great Seal of England bearing date at Westminster the 6 day of May instant to us whose names are hereunder written and others directed for the due execution of a Statute made the three and fourtieth year of the Reign of the late Queen Elizabeth entituled An Act to redresse the misimployment of Lands Goods and Stocks of money heretofore given to charitable Uses We do will end
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
D. Esquire his Executors and Assignes all that the aforesaid Mannor of D. with the Appurtenances together with all the Lands c. thereunto belonging To have and to hold the said Mannor and Premisses to the said H. J. his Executors Administrators and Assignes from the end and expiration of the said first mentioned Indenture of Lease That is to say from the Feast of the Birth of our Lord God which shall be in the year of our Lord God 1642. unto the end and term of one and twenty years from thence forth next and immediately ensuing and fully to be compleat and ended for and under the yearly Rent of 50 l of lawfull money of England and that the same last mentioned Lease or Demise was allowed of by P. L. and Dame E. B. his Wife as Patrons of the same School And that the said old or former Lease made and granted of the said Mannor of D. and Premisses with the Appurtenances by the said J. H. precedent School-master and the said T. C. J. W. and W. C. to the said F. R as aforesaid was not within 14. years of expiration of the years thereby granted by effluction of time at the making of the said new Lease by the said T. C. J. W. and G. G. to the said H. J. as aforesaid neither was the same old or former Lease so made and granted to the said F. R. by the said J. H. and J. B. as aforesaid surrendred or otherwise avoided within one year next after the making of the said new Lease to the said H. J. nor at any time sithence And that the said Mannor of D. yet is and at the time of the making of the said Lease to the said H. J. was worth 60 l of lawfull money of England per ann. And that the said T. C. is dead and that T. O. Presbyter is now School-master of the same Grammar-School of the said A. B. Esq in D. aforesaid And that neither the said A. B. nor J. his Wife made any direction otherwise then as aforesaid touching the Issues and Profits of the said Mannor as by the said Inquisition hereunto annexed relation being thereunto had more at large it doth and may appear Now for as much as it appeareth by the Inquisition before recited That by the Statutes Ordinances and Constitutions concerning the Grammar-School before mentioned and the Lands Tenements and Possessions thereof All Leases made by the said Corporation of any their Lands Tenements or Hereditaments being in the hands of any Farmer or Farmers by vertue of any old or former Lease for years shall be utterly voyd unlesse the same old or former Lease for years be within fourteen years of expiration of the said years by effluction of time at the making of the said new Lease and be surrendred within one year next after the making of the same Lease And for that it appeareth likewise by the said Inquisition That the old or former Lease therein mentioned to be made and granted of the Mannor of D. before mentioned by the said J. H. J. F. and G. O. to the aforesaid R. F. as aforesaid was not within fourteen yeers of expiration of the years thereby granted by effluction of time at the making of the said new Lease by the said T. C. J. W. G. G. to the said J. H. as aforesaid And that the same old or former Lease so made and granted to the same R. F. by the said J. H. and J. F. and G. O. as aforesaid was not surrendred nor otherwise avoided within one year next after the making of the said new Lease to the said R. F. or ever at any time since And for that it appeareth and therefore the making of the said new Lease was a breach of Trust in the said School-master and Guardians Further also it appeareth by the said Inquisition that the said Mannor and Premisses so demised and granted to the said H. J. as aforesaid at the Rent of 50 l per ann. is worth 60 l per ann. to be let therefore and for other the matters and things in the said Inquisition appearing the said Sir W. R. c. being six of the Commissioners named and authorized in and by the said Commission upon full hearing and debating of the matter by the Councell learned in the Laws appearing before the said Commissioners as well on the behalf of T. J. Son of the said H. J. who claimeth an interest in the said Mannor of D. for divers years yet to come under colour of the Lease before mentioned made by the said J. H. J. B. and G. O. to the said H. J. as aforesaid do by vertue of the said Statute and Commission order adjudge and decree that the said Lease made and granted by the said J. A. J. B. and G. O. to the said H. J. was made contrary to the intent of the Donor of the said Lands and contrary to the Ordinances and Constitutions appointed for and concerning the said School and the Lands Tenements and Possessions thereof and is not warranted by all or any of them but was and is an abuse and misgovernment of the said Mannor and Lands and a breach of Trust in the said T. O. School-master of the said Grammar-School J. B. and G. O. Guardians of the Lands Tenements and Possessions of the said School and is a great and apparent prejudice and hinderance to the due and faithfull imployment of the profits of the same according to the intent of the Donor and a defrauding of a charitable Use within the said Statute and that the said Lease and the said Mannor and Lands and the Indenture of Demise for the passing of the same to the said F. R. is and from henceforth shall be utterly void and of none effect And the said Commissioners do further order adjudge and decree That the said T. O. School-master and the Guardians of the Lands Tenements and Possessions of the same School for the time being shall and may Demise grant and to Farm let the said Mannor of D. in such manner as by the same Ordinances and Constitutions concerning the said School School master and the Lands Tenements and Possessions thereof is limited declared ordained and appointed The said Lease so made of the same Mannor and Lands to F. R. aforesaid notwithstanding And they the said Commissioners do further order adjudge and decree that the said T. R. Esquire Son of the said F. R. shall within one Month after notice of this Decree deliver the Indenture of the said Lease made unto the said F. R. of the said Mannor and Premisses as aforesaid to the said T. O. or his Successors and Guardians of the Lands Tenements and Possessions of the same School for the time being to be cancelled and shall likewise within that time pay unto the said T. O. the summ of 10 l of lawfull money of England for his charges and expences in suing out the said Commission and in the prosecution of the said Inquisition 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
Stocks of Money may be duly and faithfully imployed to and for the charitable Use and Intents for which they were given limited assigned or appointed by the Donors and Founders thereof according to a Statute made in the 43. year of the Reign of the late Queen Elizabeth intituled An Act to Redresse the Misimployments of Lands Goods and Stocks of Money given to charitable Vses And whereas the said Sir W. R. c. being seven of the Commissioners named and authorized in and by the said Commission meeting for the execution of the said Commission at the day and place aforesaid it was then and there found by the oaths of F. M. J. B. c. good and lawfull men of the said County duly summoned impannelled and sworn according to the said Statute and Commission that A. B. c. and J. his wife by their Writing under their Seals bearing date the 20 day of J. in the fifth year of the Reign of the said Queen and by and according to a Grant and License from the said Queen duly obtained did Found Erect and incorporate a Free School in C. by the name of the School-Master and Guardians of the Lands Tenements and possessions of the Grammar-School of A. B. Esq in C. in the County of D. and did name and appoint G. H. Presbyter School-master and A. B. and C. D. Guardians of the said Lands Tenements and Possessions who by vertue thereof were School-master and Guardians of the Lands Tenements and Possessions of the said Grammar-School and became and were one body Corporate and politick both in name thing And that the said School being so erected founded and established and the School-master thereof and the Guardians of the Lands Tenements and Possessions of the same School being a body Corporate and Politick as aforesaid the said A. B. did make his last Will and Testament in Writing bearing date c. and by the same his said last Will according to the license of the said Queen in that behalf granted did among other things give and bequeath to J. G. the Mannor of D. with the Appurtenances in the said County of D. for the term of 21. years paying yearly during the said term the Rent of 20 l And that the said A. B. by the same his said Will did give and bequeath the Reversion and Remainder thereof with the said Rent to the said School-master and Guardians To have and to hold the said Mannor and the said Rent and the Reversion thereof to them and their successors for ever to the intent that with the Issues and Profits thereof they should find six poor folks in S. in such manner as by him or his Executors should be appointed And that afterwards in the Term of Easter viz. On Wednesday being the third day of May in the twentieth year of the Reign of our said late Soveraign Lady Queen Eliz. It was among other things by the Right Honorable Sir N. B. Knight then Lord Keeper of the Great Seal of England and her Majesties Court of Chancery by the assent and consent of W. B. Esq Cosin and Heir to the said A. B. Patron of the said Grammar-School Ordered adjudged and Decreed That the Statutes Ordinances and Constitutions of and for the said Grammar-School and of and for the relief of certain poor people within the Parish of S. aforesaid of the foundation of the said A. B. and Dame J. his wife should be made and ordered by the appointment of E. then Bishop of Exeter or of his Successors and of A. N. then Dean of the Cathedrall Church of St. P. in E. or his Successors and of the said W. B. or his Heirs and that G. late Bishop of E. Successor to the said E. Bishop of London or A. B. of S. aforesaid Knight Cosin and Heir to the said A. B. deceased and Cosin and Heir to the said W. B. Esquire and Patron of the said Grammar-School and J. D. Dean of the said Cathedral Church of St. P. in E. by a certain Writing indented bearing date the 8. day of J. in the tenth year of the Reign of our late Soveraign Lord King James over this Realm of England An. Dom. 1612. did in performance of the said Decree make ordain publish and declare divers Statutes Ordinances and Constitutions concerning the said Grammar-School the School-master Guardians and Possessions of the same and that they the said G. Bishop of E. Sir A. B. the Heir of J. D. Dean of St. P. did in and by the said Writing indented amongst other things by vertue of the said Decree in particular make ordain publish and declare certain Ordinances and Constitutions concerning the Lands Tenements and Possessions of the said School in these words following 1. Item All Leases to be made by the said Corporation of any their Lands Tenements or Hereditaments being in the hands of any Farmer or Farmers by vertue of any old or former Lease for years shall be utterly void unlesse the same old or former Lease for years be within 14. years expiration of the said years by effluction of time at the making of the said new Lease and be surrendered within one year next after the making of the same Lease 2. Item The said Corporation shall do their best endeavour for the preservation and advancement of their Possessions Rents and Revenues without making or consenting to any disherison to be had or made to the said Corporation in any thing 3. Item The said School-master and Guardians shall not have any power to do or suffer any act to the disherison of the said Corporation without the consent of the Bishop of E. and of the Patron for the time being And that G. H. late School master of the said Grammar-School and J. W. and W. C. late Guardians of the Lands Tenements and Possessions of the same School by a certain Deed indented written in Parliament and sealed with the common Seal of the said Corporation bearing date the 10. day of J. in the second year of the Reign of his Majesty that now is did with one assent and consent Demise Grant betake and to Farm let unto one F. R. late of L. Gent. his Executors and Assignes the said Mannor of D. with the Appurtenances thereunto belonging for the term of one and twenty years to commence from the Feast day of the birth of our Lord God then last past before the date of the same Indenture of Demise at for and under the yearly Rent of 20 l of lawfull money of England And the said T. W. late School-master of the said Grammar-School Successor to the said G. H. and J. F. and G. O. Guardians of the Lands Tenements and Possessions of the same School by a certain Indenture bearing date the 8. day of N. in the 13. year of his now Majesties Reign reciting the said former Lease so made to the said F. R. as aforesaid did Demise Grant set and to Farm let unto H. J. late of P. in the said County of