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-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
require you That you cause to come before us and others the said Commissioners or any four of us at the house of A. B. called or known by the Name or Sign of the Crown in B. in the County aforesaid on the 10 day of June now next ensuing by nine of the clock in the morning of the same day twenty four honest and lawful men of your said County to enquire upon their oaths according to the tenor of the said Commission what Lands Tenements rents annuities profits Hereditaments Goods Chattels Moneys and Stocks of Mony have at any time heretofore been given limited appointed or assigned for any the charitable Uses in the said Statute and Commission mentioned and that have been misimployed misconverted or misgoverned and of other the matters and things in the said Commission mentioned in that behalf and hereof you are not to fail Given under our Hands and Seals the 22 day of May in the year of our Lord 1658. When four or more of the Commissioners are mett then read the Commission Then call the Sheriff to return his Precept Then call the Jury When the Jury are full then call the parties Defendants that they may take their challenges to the Jury Then swear the Foreman as followeth The Oath to the Foreman of the Jury YOu shall diligently enquire what Lands Tenements Rents Annuities Profits Hereditaments Goods Chattels Money and Stocks of Money have been heretofore given limited appointed or assigned as well by any King or Queen of England as any other well disposed person or persons for relief of aged impotent and poor people maintenance of sick and maimed Soldiers Mariners Schools of Learning Free Schools and Schollars of Vniversities repair of Bridges Ports Havens Cawsies Churches Sea-banks and Highways education and preferment of Orphans marriage of poor maids supportation help of young Tradesmen Handicraftsmen persons decayed redemption or relief of prisoners and captives ease and aid of poor Inhabitants concerning payment of Fifteens setting out of Soldiers and other taxes and of the abuses breaches of trust negligences misimployment not imploying concealing defrauding misconverting and misgovernment of the same Lands Tenements Stocks of money and other things given to any the charitable Vses aforesaid And thereof you shall make a true presentment according to your evidence and the best of your knowledge So God help you It is convenient to have the Inquisition ready drawn in Paper especially as to Wills and Deeds and the breaches of Trust c. and matters of Fact that so the Jury having a draught ready may with ease amend and make it ready to be engrossed and so save the Jury the trouble of another meeting Inquisitions AN Inquisition indented taken at L. in the County aforesaid the four and twentieth day of M. in the year of our Lord 1658. before W. C. R. S. c. by vertue of a Commission under the Great Seal of England to them and others directed for the due executing of a Statute made in the High Court of Parliament holden the 27 day of October in the three and fortieth year of the Reign of the late Queen intituled An Act to redresse the misimployment of Lands Goods and Stocks of Money heretofore given to charitable Vses By the oaths of c. honest and lawfull men of the County aforesaid who being duly returned impannelled and sworn according to the said Statute and Commission say upon their oath That M G. late of W. in the County of E. Widow deceased long before her death did hold to her and her Heirs of the then Lady of the Mannor of W. in the said County of E. by Copy of Court-Roll according to the custom of the said Mannor all that Messuage with the Appurtenances scituate and lying at P. of the yearly value of c. above all charges and reprizes And the Jurors aforesaid do further say upon their oath That the said Tenement and Premises were divers years in the life time of the said M. G. held and enjoyed by D. B. late of S. deceased and that the said M. G. did in her life time and long before her death assigne limit and appoint that thirty shillings of the rent of the said Tenement and Premises should be yearly imployed and bestowed in and for the reliefe of the poor people for the time and from time to time being in W. aforesaid for ever and that the summ of thirty shillings per ann. was yearly for divers years together in the life time of the said M. G. and by her direction gift and appointment paid to the Churchwardens of the said Parish for the relief of the poor there And the Jurors aforesaid do further say upon their oath That the said M. G. to the intent the said yearly summ of thirty shillings might be the better secured to be paid unto the poor of the said Parish of W. in her life time to wit the c. did surrender the same Tenement and Premisses according to the custom of the said Mannor into the hands of the then Lady of the said Mannor to the use of such person and persons and to the use and intent of the Testament or last Will of the said M. G. as by the Copy of the Court-Roll of the same Mannor to the Jurors aforesaid in evidence now shewed it doth and may appear And the Jurors aforesaid do further say upon their oath that the said M. G. after the making of the said surrender did declare her Will minde and desire to be and did assign limit and appoint That thirty shillings out of the said Rents Issues and Profits of the said Tenement and Premisses should yearly and every year for ever then after be paid to the Churchwardens of the Parish of W. aforesaid for the time and from time to time being for and towards the relief of the poor people of the Parish of W. aforesaid And the Jurors aforesaid do further say upon their oath That the said M. G. on or about the day of c. died and that the said D. B. having notice of the charitable Devise Assignment and appointment of the said M. G. aforesaid to and for the pious use aforesaid did for some years after the death of the said M. G. hold and enjoy the said Tenement and Premisses and did pay the same thirty shillings yearly to the Church-wardens of the said Parish for the relief of the poor of W. aforesaid accordingly And the Jurors aforesaid do further say upon their oath That since the death of the said M. G. the said D. B. during his life and from and after his death R. B. Son of the said D. B. have held and enjoyed the said Tenement and Premises and received and hath taken the Rents and Profits thereof as owners of the same Premisses by vertue as they affirm of some surrender or other assurance thereof made by J. G. deceased who was Son and Heir of M. G. And that the said R. B. and B. have
for the space of these eight years now last past detained the said Gift of thirty shillings from the said charitable Use to and for which the same was Devised assigned and limited as aforesaid And that at the Feast of c. there was and yet is the summ of c. of the said yearly payment of thirty shillings per ann. so Devised limited assigned and appoined by the said M G. to and for the charitable use intent and purpose aforesaid behind arrear and unpaid In witness c. AN Inquisition indented taken at the S. at B. in the said County the day of c. before J. W. W. E. c. Gent. by vertue of a Commission under the Great Seal of England bearing date c. to them and divers other persons directed for the due execution of a Statute made in the High Court of Parliament holden the 27 day of October in the three and fortieth year of the Reign of the late Queen Elizabeth intituled An Act to redresse the misimployment of Lands Goods and Stocks of Money heretofore given to charitable uses by the oaths of J. F. R. L. c. honest and lawfull men of the said County who being duly returned impannelled and sworn according to the said Statute and Commission do say upon their oaths That one M. B. on or about the day of c. was seized in his Demesne as of Fee of and in one Messuage c. And that the said M. B. being so seized of the said Messuages and Premisses aforesaid he the said M. B. made his last Will and Testament in Writing bearing date the day of c. and by the same his said Will did amongst other things give demise and bequeath the said Messuages called C. to A. his wife during her life and after her decease to the Church of T. aforesaid in these words following Item I give c. And the Jurors aforesaid do further say upon their oaths That one T. K. on or about the day of c. did enter into the said Messuages and Premisses called C. and by himself and his under Tenants possessed and enjoyed the same and took and received the rents and profits thereof during his life paying onely seven Nobles per ann out of the rents and profits of the same to the Churchwardens and Parish of T. to and for the charitable Use aforesaid And the Jurors aforesaid do further say upon their oaths That after the death of the said T. K. E. K. Son of the said T. K. now also deceased entred into the said Messuages and Premisses and by himself and his under tenants did take and receive the rents and profits thereof during his life and continued the payment of the said seven Nobles per ann. for the same to the said Church untill about twelve years last past at which time the said E. K. did refuse to continue the payment of the said seven Nobles per ann. any longer And the Jurors aforesaid do further say upon their oaths that the said Messuages so as aforesaid divised was divers years since made divided and converted into severall Tenements And that the said Massuage or Tenement called C. and now commonly called by the name of the Church-House is now and for divers years last past hath been in the possession of E. C. And that the said Houses Tenements and Cottages in T. aforesaid now in the Tenure or Occupation of E. P. Widow were formerly out-houses belonging to and parcell of the said Messuage and Premisses with the Appurtenances called C. alias the Church-House And the said Jurors do further say upon their oaths That the said Messuage or Tenement Houses and Premisses now are and for these six years last past have been of the clear yearly value of c. above the moneys payable out of the Rents and Profits thereof to and for the superstitious uses above mentioned and all other charges and reprizes And the Jurors aforesaid do further say upon their oaths That sithence the death of the said E. K. which happened about two years since the rents of the Messuage Tement and other the Premisses have been claimed by T. K. Son and Heir of E. K. as belonging to him as Son and Heir to his said Father and that the said Messuage Tenement and Premisses have been enjoyed and disposed of by him the said T. K. and his under Tenants and the Issues Rents and Profits growing and arising out of the same for these two years last past have been received and enjoyed by the said T. K. and by him converted to his own particular use and benefit In witnesse whereof to one part of this present Inquisition delivered by the said Jurors to the said Commissioners and by them to be returned into the high Court of Chancery as well the said Commissioners as the said Jurors have set their Hands and Seals And the other part thereof remaining with the Fore-man of the said Jurors the said Commissioners have set their Hands and Seals the day and year first above written AN Inquisition c. By the oaths of c. who being duly returned impannelled and sworn according to the said Statute and Commission say upon their oath That on or about the tenth day of J. in the twentieth year of the Reign of Henry the eighth late King of England J. C. R. A. J. C. T. B. W. C. W. S. T. T and T. W. as Feoffees in Trust for one J. B. sometimes of E. in the said County Yeoman deceased stood joyntly seise of and in their Demesne as of Fee in one Messuage with the Appurtenances scituate and being in G. in the County aforesaid c. And that the said J C. R. A. and other the aforesaid Feoffees being so of the said Messuage Lands and Premisses seised in Trust as aforesaid the said J. B. made his last Will and Testament in Writing bearing date the sixteenth day of A. in the said twentieth year of the Reign of the said late King H. 8. and by the same did will declare and appoint that they the said J. C. R. A. and other his Trustees aforesaid their Heirs and Assignes and all such other person and persons as should stand seised of the said Messuage Lands and Premisses with the Appurtenances from time to time of the issues and profits coming and growing of the said Tenement and Lands should sufficiently repair new build and maintain the Houses Edifices and Buildings of the said Tenement as often and when as need should be for evermore And further that the said Feoffees of the issues and profits coming of the said Tenement Lands and other the Premisses with the Appurtenance should do keep and find on the day of the Moneth that the said J. B. deceased or within six days before or within six days after an yearly obit or anniversary within the aforesaid Parish Church of E. for the Souls of the said J. B. the Souls of his father and mother his wife and children and all
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
repair of the Highwaies Gifts of money to poor people moneys expended in Dinners and repair of the said Churches there doth at this time remain in the hands of I. S. c. the now Feoffees of the said Tenement Lands and Premises or in the hands of some of them the summe of 54 l 14 s 5 d or thereabouts to the Church of E. and 56 l 5 s 1 d or thereabouts unto the Church of T. G. The which several summes divers of the Parishioners of the said several Parishes of T. G. and E. of good abilitie have desired the said Feoffees to deliver unto them for a Church Stock for their several Parishes to be by them bestowed to the use of the said several Churches according to the said Will of the I. B. But they the said now Feoffees or some of them have and do refuse to deliver the same unto them And the said Jurors do further say upon their oathes That sometimes the surviving Feoffees have suffered the interest of the said Premises to continue in them untill under the number of eight Feoffees were surviving and Inhabitants of the said Parishes And that the said last Feoffment made of the said Premises by the then surviving Feoffees divers of the said last Feoffees are since dead so that at this Present there are but to the number of nineteen Feoffees living and inhabiting within the said Parishes of E. and T. G. In witnesse c. Decrees AT L. S. in the County of E. aforesaid the last day of M. in the yeare of our Lord Christ 1659. Whereas by an Inquisition taken at L. S. aforesaid the 24th day of this instant M. before W. C. Serjeant at Law R. S. Esquire c. By vertue of a Commission under the great Seale of England to them and others directed for the due execution of a Statute made in the High Court of Parliament holden the 27. day of O. in the 43. yeare of the Reign of the late Queen E. Intituled an Act to redress the mis-imployments of lands goods and stocks of money heretofore given to charitable uses by the oaths of J. A. Gent. R. B. Esquire c. honest and lawfull men of the County aforesaid It is found and doth appeare that M. W. Widow deceased long before her death did hold to her and her heirs of the then Lady of the Mannor of W. in the said County of E. by copy of Court Roll according to the custome of the said Mannor all that Tenement c. as by the said Inquisition hereunto annexed may appear Now we the said W. C. R. S. c. Having first called the said R. B. being the party interessed in the Tenement and premisses in the said Inquisition mentioned who appeared before us by her Councell before the taking of the said Inquisition and was fully heard touching the premisses and having examined and considered the matters and things in and by the said Inquisition found and thereby appearing do by vertue of the said Statute and Commission and the power and authority to us thereby given order adjudge and decree that the said R. B. her Executors and Administrators shall within one moneth next after notice of this Decree Order and Judgement pay unto the Church-wardens of the said Parish of W. for the time being the sum of 20 l of lawful money of England for the arrearages of the said yearly payment of 30 l per annum so by her with-held and detained from the charitable use aforesaid to and for the reliefe of the poore people of VV. aforesaid And also the sum of ten pounds more for damages for the detaining of the said money and for the costs and charges of the Parishioners of VV. aforesaid by them expended and by the suing forth of the Commission aforesaid and in the prosecution thereof And in and about the obtaining of the said Inquisition and this Decree And we the said VV. C. R. S. c. do further order adjudge and decree that the said R. B. her Heirs and Assignes owners and proprietors of the Tenement and Premisses aforesaid and all and every other person and persons whatsoever claiming by from or under the said M. VV. and D. B. deceased or either of them shall from henceforth for ever hereafter out of the rents issues and profits of the said Tenements and Premisses yearly and every yeare pay unto the Church-wardens of the parish of VV. aforesaid for the time and from time to time being the sum of thirty pounds of lawful money of England upon the Feast of the Epiphany in every year yearly for ever to and for the relief of the poor of VV. aforesaid according to the true direction appointment intent and meaning of the said M. G. the Donor thereof In witnesse whereof c. AT E. in the said County upon the twentieth day of November in the fourteenth yeare 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 by an Inquisition indented taken at E. aforesaid the one and twentieth day of September last past before Thomas Winniff Dean of St. Pauls Church London c. By vertue of his Majesties Commission under the great Seal of England bearing date the sixth day of March in the thirteenth year of his said Highnesse Reign directed to the right Reverend Father in God the Lord Bishop of London c. Authorizing them or any four or more of them for enquiring and reformation of Deceits and Breaches of trust concerning Lands Tenements and other things given limited and appointed to any the charitable Uses named in the said Commission within the said County according to a Statute of the three and fortieth year of the Reign of the late Queen Eliz. in such cases made and provided by the oaths c. It was found that H. L. late of W. in the said County of Essex deceased did in his life time amongst other things purchase of one N. S. a certain customary Messuage or Tenement with the Appurtenances in W. aforesaid late in the Tenure or Occupation of one J. E. Gent. and holden of the Lord of the said Mannor by Copy of Court Roll according to the custom of the said Mannor And he the said H. L. took surrender thereof in the names of his Sons H. L. and J. L. being then Infants of tender years And afterwards during his life did take and receive the rents issues and profits of the said Messuage or Tenement with the Appurtenances to his own proper use and behoof And that the said H. L. having purchased the said Messuage or Tenement with the Appurtenances amongst other things as aforesaid he the said H. L. did make his last Will and Testament in Writing bearing date the 28 day of November 1619. And by the same his last Will and Testament did limit and appoint one yearly Rent of forty shillings to be issuing and payable yearly for ever
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
at the time and place of meeting neither the party interessed nor any other cometh to make defence and challenge if the Commissioners proceed to enquire and make a Decree it is good and the notice to his Clients is sufficient and in the case of S. it was proved that he was an aged man not able to follow his own businesse dwelling in a remote County and that he had a Son a Counsellor at Law who attended his Fathers businesse in other things unto whom the Commissioners gave notice of the time and place for executing the Commission and that he might have given his Father timely notice of it and it was taken as a neglect of purpose to avoid the Commission Also it was proved that the Father had personall notice of the time and place appointed by the Commissioners to make the Decree and his Son came to attend it but did not take any exception to the Jurors and the Lord Keeper said that notice was sufficient although he had no notice of the Inquiry Thirdly if one Devise money to a charitable Use for Relief of the poor and makes two Executors and dies and they prove the Will and joyntly intermeddles with the Receipt of money and one trusts the other with the money given to perform the charitable Use and to pay it accordingly and he wastes it and dies insolvent the surviving Executor shall be charged to pay the money for the charitable Use if the Testator left Assets to pay it for that they joyntly meddled in the execution of the Will but if the Executor that died had onely proved the Will in the name of both Executors and the surviving Executor never meddled in the execution of the Will but left all to the other and he had wasted the Estate and died insolvent the surviving Executor shall not be charged with the charitable Use out of his own Estate for that the other Executor had a joint authority with him from the Testator and he would not prevent his intermeddling and the survivor had no other means to prevent his charge then by his refusall Lastly if money be given to a charitable Use by Will and the Executors detain it in their hands many years without imploying it according to the Will having Assets the Commissioners may Decree the money with damages for detaining of it to be imployed in the charitable Use according to their discretions not exceeding 8 l per cent for a year for the damages Mich. 10. Car. int. Inhabitants of Eltham in Kent against Warreyn the Case was thus Land was given in the time of Hen. 8. being then of the value of 3 l per ann. to the Parishoners of Eltham to repair the High-ways there this Land doth improve to be of the value of 11 l per ann. divers of the Parishoners being Vestry-men there do Demise this Land and House upon it to Warreyn for fifty years at 3 l Rent per ann. Warreyn cuts down Timber-trees growing upon the Land and repairs the House with part and sells and otherwise disposeth of the residue and pays the 3 l Rent yearly which is bestowed in repair of the High ways The Commissioners Decree Warreyn to pay damages for cutting down three trees and that his Lease should be voyd and surrendred up to be cancelled and to pay the surplusage of the true value of the Land as it was improved at the time of the Lease for the time he enjoyed it and that divers of the Parishoners naming them particularly should be Trustees to the said Land for the best profit of the charitable Use and that such a number should enfeoff others of the Parishoners to continue the number of the Trustees by the Decree appointed And upon Warreyns Appeal to the Lord Keeper the Decree of the Commissioners was confirmed in all things and resolved that the cutting down of the trees was a waste for which Warreyn should pay damages according to the value of them and bestowing but part upon the House not being able to prove the quantity it was fraud in him to colour his disposing the residue otherwise but if he had bestowed all or the greatest part of the trees in the repair it had been no waste 2. It was resolved that Commissioners may give costs to the party which prosecutes a Commission to reform a breach of trust in a charitable Use and the Lord Keeper may increase these costs if the party grieved complain without cause 3. The Lease being made at an under value is a breach of trust and fraud to deceive the charitable Use of the true value of the Land And the Commissioners may Decree the Lease to be voyd and surrendred and that the Lessee shall pay the true profits of the value of the charitable Use above the Rent reserved And lastly the Commissioners may by their Decree inable persons as Trustees to have interest in the Lands given to charitable Uses and to Demise the same according to the improved value In the Case of Sutton Colefield in Com. Warr Hill 11. Car. FIrst It was resolved That it is not materiall that the Commissioners which were present at the time the Evidence was given and of the taking of the Inquisition be present at the making of the Decree for if any or all of them are absent at the making of the Decree which were present at the time of the taking of the Inquisition and Evidence the Decree is good if it be made by four Commissioners or more And if it appears by the return that the names of four Commissioners were affixed to the Inquisition and four other Commissioners to the Decree all is good Secondly resolved If Lands of the value of 3 l per ann. be given to maintain a School-Master and in the Deed it is expressed that the said 3 l shall be onely imployed to maintain that use and no other use is expressed in the Deed and afterwards the Land increaseth to a greater value all the increased Rent shall be imployed for maintenance of that charitable Use because it doth not appear that the Donor had any intention that the profits of his Land should be imployed to any other use and at the first he gave so much as the Land was worth Thirdly resolved if Land given to charitable Use be sold for money to one that hath notice of the use this notice did make the Land chargeable with the use in all other Purchasors hands although the other Purchasors had no notice of the use because they take the Land charged with other incumbrances as the first Purchasor held but if the first Purchasor had notice of the use then is the Land discharged of the use and it shall so remain in all the Purchasors hands although they had notice of the use Fourthly resolved if Land of the value of 3 l per ann. is given to a charitable use which is paid accordingly and afterwards the Land increaseth to a better yearly value if the increased value be
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
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
other person and persons now holding occupying or enjoying the same Messuages Lands Tenements and Premises before mentioned to and for the maintenance of the Charitable use before mentioned and every of them shall within one month next after notice of this Decree leave surrender and yeild up the Possession of the said Messuages Lands Tenements and Premises unto or for the Church-wardens of T. aforesaid and that the said Church-wardens shall within three months next after they shall be actually possessed of the said Lands Tenements and Premises make and execute a Feoffment of the same Lands Tenements and Premises to the use of themselves and thirteen others of the Parishioners of T. aforesaid and their heirs in such manner as by Councell learned shall be advised and directed to the end intent and purpose that the Feoffes in such Feoffment to be named and their heirs may stand and be seized of the same Lands Tenements and Premises upon trust and confidence that they and their heirs shall permit and suffer the Church-wardens of the same Parish for the time being to receive and take the Rents and Profits of the same Premises from time to time as the fame shall arise become due and payable to and for the reparation of the said Parish-Church of S. aforesaid as often and when as need shall require and that when ten or more of the said Feoffes of the Premises shall be dead or before if it shall be thought expedient the surviving Feoffes shall make a new Feoffment of the same Premises to the use of themselves and of so many more of the Parishioners of T. aforesaid as shall make it the number of fifteen And that that order and rule shall be observed in all succeeding Generations And the Commissioners aforesaid do further order adjudge decree that the Church-wardens of T. aforesaid for the time being shall upon Tuesday in the Easter week yearly give up true and perfect accounts in writing to the Feoffes of the Premises or the Major part of them in the Parish-Church of T. aforesaid of their Receits and Disbursements of touching and concerning the Rents and Profits of the Premises And if it shall upon such account appeare that any monies are remaining in their hands that then the said Church-wardens so accounting shall within one month then next following deliver and pay over the said Monies so remaining in their hands to the succeeding Church-wardens to and for the Charitable use before mentioned And forasmuch as it appeareth unto the said Commissioners that the said T. H. the Grandchild hath in his custody an ancient Deed or Writing whereby the said Messuages or Tenements and Premises were conveyed to the said A. B. and his heirs and likewise the Originall Will of the said A. B. whereby the Premises are demised limited appointed or assigned to and for the Charitable use before mentioned The said Commissioners do further order adjudge and decree that the said T. H. shall within one month after notice of this Decree deliver un-the Church-wardens of T. aforesaid for the time being the said Deed and Will and all other Deeds Evidences and Writings touching and concerning the said Messuages Tenements and Premises or any of them which now are or have been in his hands or custody or in the hands or custody of any other person or persons to his use or by his consent or delivery at any time sithence the death of the said E. H. And lastly the said Commissioners do further order adjudge and decree that the said T. H. the Grandchilde shall within one month next after notice of this Decree pay unto the Church-wardens of the said Parish-Church of T. for the time being the sum of twenty pounds of lawful mony of England for the Rents and Profits of the said Messuages Tenements and Premises by him received since the death of his said Father E. H. Which the said Church-wardens are to imploy and bestow in and about the repaire of the said Parish Church as need and occasion shall be and require In witnesse whereof the Commissioners aforesaid have hereunto set their hands and seals the day and year above written Exceptions to a Decree EXceptions taken by T. H. Gent. to a Decree made at R. in the County of D. on Tuesday the ninth day of September in the year of our Lord 1645. made by W. C. J. H. C. M. and G. M Commissioners appointed and authorized by a Commission under the great Seal of England bearing date the eighth day of February 1643. directed to the said Commissioners and to divers other persons in the County of D. grounded upon the Statute made in the three and fourtieth year of the reign of the late Queen Elizabeth Intituled An Act made to redress misimployments of Lands Goods and stocks of Money given to charitable Uses as followeth WHereas it is set forth by the said Decree that one A. B. by his Will in Writing bearing date the 17. day of January 1524. did Devise and bequeath a Messuage or Tenement with certain houses and a Garden thereunto belonging with the Appurtenances in T. in the said County of D. commonly called or known by the dame of C. to A. his Wife during her life and after her decease unto the Church of T. aforesaid in these words following Item I Will after my decease that A. my wife have my House called C. during her naturall life and she to keep up the reparations of the said House and the Lords Rent to pay and she to find four Tapers of four pound of Wax that is one before the Rude under the Rude loft and another before our Lady another before St. Thomas and one before St. Anthony Item I Will that she keep mine Obit every year during her life and to have every year three Priests and they to have eight pence a piece and two dozen of bread and a kinder kin of double Beer and two Cheeses price of twenty pence Item I Will and appoint after my decease that all and singular my Evidences and my Copies that they be delivered into the custody of the Churchwardens of the Parish of Peter and Paul of T. aforesaid Item I will that after the naturall life of A. my Wife that then my House called C. with all the Appurtenances belonging thereunto as is more plainly specified by my Deeds that it shall remain evermore unto the Church aforesaid First to keep mine Obit yearly and the four Tapers of four pounds of Wax Moreover I Will that after the decease of A. my wife that the Churchwardens do buy six pounds of Wax and make the common light and the Tapes before the Rude to the full of two pounds of Wax a piece and so to continue for evermore and the residue of the Rent to remain to the reparations of the Church aforesaid And whereas it is set forth by the said Decree that the said A. and B. and A. B. are long since dead and that T. H. Esquire deceased on or about
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