other Parishoners of the Parish where the charitable use is to be distributed Lastly it was resolved that if a Rent seek be granted to a charitable use the Commissioners by their Decree cannot make this a Rent-charge by adding a clause of distresse unlesse it be for that this alters the nature of the Rent in the creation of it and is against the mind of the Donor Mich. 14. Car. Plate and the Masters and Fellows of St. Johns Colledge in Cambridge PLate being seised of Copyhold Land in tayl in Highgate in Midlesex surrenders this in Court to the use of his Will and suffers a Recovery in the Court of the Mannor in which no Judgement is given against the Vouchee and after Deviseth by his Will this Copyhold Land and all his Free-hold Land to his wife for life the remainder to the Master and Fellows of St. Johns Colledge in Cambridge for maintenance of the Schollars there the Heir of Plate enters upon the wife to avoid the Devise and the Master and Fellows prefer a Bill in Chancery to preserve their interest and to have the Devise to them confirmed The Lord Keeper Littleton resolves that if no Judgement be given against the Vouchee to have in value in case of a common recovery to cut off an Estate tayl that it is a voyd recovery and will not cut off an Estate tayl and as to the wife to whom the Land was Devised for life the Heir had liberty given by Law to evict them but as to the Colledge and the remainder limited to them the Lord Keeper did declare that the Devise is good to them by the Statute 43 Elizabeth touching Gifts Limitations and appointments of Lands to charitable uses for there is gift and limitation of the Land to a charitable use which shall not be avoided for want of circumstance of Law to make it good and also the Lord Keeper said that although the Colledge was incorporated by another name then the Devise was to them and therefore might not be capable of it yet the Devise is good to them by the said Statute also if the Heir avoyd the Estate tayl against the Wife at Law yet the remainder to the Colledge shall stand good and be a remainder without a particular Estate which by rules of Law cannot be but these defects in cases of charitable uses are made good by that Statute by a benigne and favourable interpretation thereupon for maintenance of Charity as it is in other cases upon Statutes for Piety and Charity 13 Jacobi Jesus Colledge Case in Court of Wards referred to the Judges DOctor Floyd seised of Lands in Capite Deviseth them to Jesus Colledge in Oxford and their Successors to find a Fellow there which should be of his blood and alliance and it was referred to the Judges Whether this Devise be good or no and they resolved and certified that by the Common Law and Statute of Wills the Devise was void for these Statutes enabled persons to Devise their Lands excepting to Corporations for that is Mortmain also none can Devise all their Capite Lands to any but must leave a third part to descend but they certified and resolved that although it be voyd by the Common Law yet the Statute of 43. Eliz. for charitable Vses doth make this good as a limitation and an appointment and that it was good for all the Land But if an Infant or Lunatick who by Law is disabled to make a Will or Devise of his Land do Devise his Land to a charitable use this is voyd and not made good by the Statute for want of a capacity to make a Will by Law The Lord Edward Mountagues Case in the Court of Wards 17. Jac. SIr Walter Mountague seised in Fee of Capite Lands in Hanging Houghton in Northamptonshire conveys two parts of these lands unto uses limited within the Statute of 32. and 34. H. 8 and by his Will deviseth the third part remaining in him for maintenance of a charitable use in Wales and upon a reference unto Hobart and Tanfield they resolved this Devise to be voyd and was not aided by the Statute of 43. Eliz. for charitable uses for in the instant of his death the Lands descended to the Heir and the Devisor having disposed of two parts in his life according to the Statute of Wills he is disabled by the Common Law and those Statutes as owner of the Lands to Devise any part of his third part remaining See Doctor Floyds Case before in Jesus Colledge Case Seymor against the poor of Twyford Trinity 1634. MOney was given to charitable uses and detained a long time as concealed the Commissioners upon the said Statute Decreed the Money to be paid with interest after the rate of 8 l per cent and this Decree was confirmed by the Lord Keeper So in the Case of the Lady Mountague of Ilford and the Inhabitants of Barking in Essex Sir Charles Mountague her Husband gave by his Will 10 l to the poor of Barking and made his Wife Executrix and died she kept the Money above twelve years in her hands and the Commissioners Decreed her to pay 20 l for the detainig this Money for use and principall and the Lord Keeper Coventry confirmed this Decree about 12. The Poor of East Greenstead against Howard 8. 10. REsolved by the Lord Keeper upon Appeal to alter or confirm a Decree made by Commissioners upon the Statute of Charitable Vses the Decree is not perpetuated and not to be altered but by Act of Parliament and is to remain in the Pety Bagg and it is in his power to make a Decree good where it is defective Hungate on the part of the Inhabitants of Sherborn 3. A Debt owing by Statute Bond Judgement or Recognizance which in Law is a thing in action was given for the creation of a School and this was Decreed to be a good appointment within the Statute to maintain a charitable Use Steward against Germyn 41. Eliz. ONe having Lands and Goods appoints by his Will that the same shall be sold to maintain a charitable Use and doth not appoint by whom the sale shall be made the Commissioners do by their Decree appoint that J. S. shall sell these Lands and Goods and Decree his sale to be good and that the money to be raised thereby shall be imployed to maintain the charitable Use according to the Donors Will and this Decree was confirmed by the Lord Keeper upon an Appeal to him Hellams Case 5. Caroli A Devise was made of Lands to the Company of Leather-sellers in London to maintain a charitable Use there upon a Decree by Commissioners to settle the Lands upon the Company an Appeal was and exception taken for that the Company of Leather-sellers was a Corporation and the Statutes of Wills doth except Devises of Land to a Corporation but the Decree was confirmed there being many Presidents in it The Schoole of Rugby in the County of Warwick 2. Caroli ONe seised in
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
THE LAW OF Charitable Uses WHEREIN The Statute of 43. Eliz. Chap. 4. is set forth and Explained with Directions how to Sue out and prosecute Commissions grounded upon that Statute Also Presidents Inquisitions and Decrees with divers Judgements and Resolutions upon Exceptions and Appeals against Decrees and other Proceedings upon the said Statute By JOHN HERNE LONDON Printed by T. R. for Timothy Twyford and are to be sold at his Shop within the Inner-Temple-Gate 1660. To the Reader TO commend the Piety of this Statute or to lament the want of a thorough Explanation would afford abundant matter for a long Preface but intending as I ought charity without ostentation I shall onely inform the Reader that being frequently present at Commissions grounded on this Statute of Charitable Uses I have found the Gentlemen of the Countrey Commissioners Jurors and parties prosecuting by want of experience in Clerks attending such Commissioners forced to unnecessary attendance and charge Whereupon grown almost weary of well-doing with ill direction they never cheerfully embraced the Commissions Nay many Inquisitions and Decrees which have been returned miscarried and were rendered ineffectuall through the unskilfulnesse of those that drew them I have therefore to prevent such inconveniences in future published the Statute with severall Observations thereupon with divers Resolutions and Judgments of Lord Chancellors Keepers and Judges upon the same and upon Exceptions taken to severall Inquisitions and Decrees made by Commissioners on such Commissions To which I have added some good forms of Inquisitions Decrees and Exceptions to Decrees that those Gentlemen who are Authorized to execute such Commissions may be better acquainted with the Statute and by it understand their power and duty with the best method of proceeding thereupon And that the Clerks attending such Commissions may be furnished with Presidents of all sorts for the readier dispatch of the same my onely aim herein being to ease the Countrey and the Prosecutors of unnecessary charge and trouble and to render the proceedings upon such Commissions effectuall and my hope is that this Work will take that good effect for which it is intended J. H. THE STATUTE Of Charitable Uses 43. Eliz. CHAP. 4. An Act to redresse the mis-imployment of Lands Goods and Stocks of Money heretofore given to Charitable Uses WHereas Lands Tenements Rents Annuities Profits Hereditaments Goods Chattells Money and Stocks of Money have been heretofore given limited appointed and assigned as well by the Queens most excellent Majesty and her most noble Progenitors as by sundry other well disposed persons some for relief of aged impotent and poor people some for maintenance of sick and maimed soldiers and Mariners Schools of Learning free Schools and Scholars of Vniversities some for repair of Bridges Ports Havens Causways Churches Sea-bancks and High-ways Some for education and preferment of Orphans some for or towards the Relief Stock or Maintenance for houses of Correction some for marriages of poor Maids some for supportation aid and help of young Tradesmen Handy-crafts-men and persons decayed and others for relief or redemption of Prisoners or Captives and for aid or ease of any poor Inhabitants concerning payment of Fifteens setting out of Soldiers and other Taxes which Lands Tenements Rents Annuities Profits Hereditaments Goods Chattels Money and Stocks of Money Neverthelesse have not been imployed according to the charitable intent of the Givers and Founders thereof by reason of frauds breaches of Trust and negligence in those that should pay deliver imploy the same For redresse and remedy whereof Be it enacted by Authority of this present Parliament That it shall and may be lawfull to and for the Lord Chancellor or Keeper of the great Seal of England for the time being And for the Chancellor of the Dutchie of Lancaster for the time being for Lands within the County Palatine of Lancaster from time to time to award Commissions under the great Seal of England or the Seal of the County Palatine as the case shall require into all or any part or parts of this Realm respectively according to their severall Iurisdictions as aforesaid to the Bishops of every severall Diocesse and his Chancellor in case there shall be any Bishop of that Diocesse at the time of awarding of the same Commissions and to other persons of good and sound behaviour authorizing them thereby or any four or more of them to enquire as well by the Oaths of twelve men or more of the County as by all other good and lawfull ways and means of all and singular such Gifts Limitations Assignments and Appointments aforesaid and of the abuses breaches of Trust negligences mis-imployments not imploying concealing defrauding misconverting or misgoverning of any Lands Tenements Rents Annuites Profits Hereditaments Goods Chattels Money or Stocks of Money heretofore given limited appointed or assigned or which hereafter shall be given limited appointed or assigned to or for any the charitable and godly uses before rehearsed and after the said Commissioners or any four or more of them upon calling the parties interessed in any such Lands Tenements Rents Annuities Profits Hereditaments Goods Chattels Money and Stocks of Money shall make enquirie by the oaths of twelve men or more of the said county whereunto the persons interessed shall and may have and take their lawfull challenge and challenges and upon such enquiry hearing and examining thereof set down such Orders Iudgements and Decrees as the said Lands Tenements Rents Annuities Profits Goods Chattels Money or Stocks of money may be duly and faithfully imployed to and for such of the charitable uses and intents before rehearsed respectively for which they were given limited assigned or appointed by the Donors and Founders thereof which Orders Iudgements and Decrees not being contrary or repugnant to the Orders Statuts or Decrees of the Donors or Founders shall by the authority of this present Parliament stand firm good according to the Tenor Purport thereof and shall be executed accordingly untill the same shall be undone and altered by the Lord Chancellor of England or Lord Keeper of the great Seal of England or the Chancellor of the county Palatine of Lancaster respectively within their severall Iurisdictions upon complaint by any party grieved to be made to them Provided always that neither this Act nor any thing therein contained shall in any wise extend to any Lands Tenements Rents Annuities profits goods chattells money or stocks of money given limited assigned or appointed or which shall be given limited appointed or assigned to any Colledge Hall or house of Learning within the Vniversities of Oxford or Cambridge or to the Colledges of Westminster Eaton or Winchester or any of them or to any Cathedrall or Collegiat Church within this Realm And Provided also That neither this Act nor any thing therein shall extend to any City or Town corporate or to any the Lands or Tenements given to the uses aforesaid within any such city or town corporate where there is a speciall Governor or Governors
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
not also payd to the charitable use that is breach of trust which the Commissioners may reform if no other use of imployment of the revenue be expressed in the Donors Deed Fifthly resolved if Land be given to a Corporation or other particular persons to perform a charitable use and the Donor appoint them Visitors also of the use according to his intent if the said Visitors do break the trust either in detaining part of the revenue misimploying or any other ways defrauding the charitable use this may be restored by Decree of the Commissioners notwithstanding the Statute of 43 Eliz. which disables Commissioners to meddle with Lands given to charitable uses where speciall Visitors are appointed for the intent of the Statute is to disable Commissioners to meddle with such a case where the Land is given to persons in trust to perform a charitable use and the Donor appoint speciall Visitors to see these trustees to perform the use according to his intent if the Trustees defraud the trust the Commissioners cannot meddle but the Visitors are to perform it but where the Visitors are Trustees also there the Commissioners may by their Decree reform the abuse of the charitable use Hynshaw and Pydwers the Mayor of the Corporation of Morpeth in Northumberland 5. Car. KIng Edw. 6. gives Land to the Mayor and Commonalty of Morpeth of the value of 20 l per ann. to maintain a School-master there and appoints them Visitors of the School-master and Schollars that they behave themselves according to his Orders this Land increaseth to 100 l by the year and the Corporation did onely bestow on the School-master the 20 l per ann. accordding to the value at the time of the first Gift A commission is granted to reform this breach of trust and the Corporation upon summons refused to appear before the Commissioners for that they are appointed Visitors and the Proviso of the Statute doth exempt in such cases the power of the Commissioners the Commissioners certifie this to the Lord Keeper and that the Visitors were the persons trusted and did break the trust and Serjeant Thomas Crew moving the Lord Keeper upon this Certificate the 22 of May 5 Car. the Lord Keeper declared his opinion to be that the Commissioners might proceed in the execution of their Commission for the Visitors being Trustees and Parties breaking the Trusts are not within the intent of the Proviso and if it should be otherwise construed this breach of Trust would escape unpunished unlesse in Chancery or in Parliament which were a tedious and chargeable Suit for poor persons And the Lord Keeper said That the not bestowing of the increased value of the Land given was a breach of trust in the Corporation if no other use be expressed in the Letters Patents Also it was then said If Land be given to maintain a charitable use for relief of poor and also that the School-master or poor shall pray for the Donors soul that the charitable use shall be said the principall intent of the Donor and the praying for his soul but an accessary and therefore the charitable use shall support and preserve the Land The Case of the Inhabitants of Woodford in Essex against Parkhurst Hill 14. SIr Henry Leigh did purchase Copyhold lands in Woodford in the name of two of his younger sons and their Heirs they being within age and by his Will Deviseth to Sir William Martin and other Parishioners of Woodford and their Heirs a Rent-charge of 40 s per annum out of this Copyhold land for relief of the poor there and dyes Sir William Martin purchaseth this land and enjoyes it for many years and then sells the land unto Packhurst and his Heirs Parkhurst hath notice of the Charitable use between the Surrender and his admittance the Commissioners Decree Parkhurst to pay all the arrerages since Sir Henry Leighs death and upon his appeal the Lord Keeper resoved these points First that the Rent is well Devised although Sir Henry had nothing in the land in strictness of Law for that the Estate in Law was in the children yet Sir Henry making the Purchase and enjoying the land as owner and receiving the Profits of it he shall be said in Equity to have power to dispose to a Charitable use Also it being objected that there wanted a Surrender to enable him to Devise the Lord keeper said yet the Devise was good enough and shall be said a good gift limitation and appointment within the Statute in favour of Charitable uses Secondly resolved that the Rent although it was extinct in Law by Sir William Martin purchased yet by the Commissioners Decree it is revived Thirdly Resolved the Rent is not extinct by this Purchase although he had no notice of the same for that the Purchase is of another thing then was given to the Charitable use Fourthly Resoved that the Rent is a charge which goes with the Land in whose hands soever it comes and a Distress may be taken for the arrerages upon the ter-tenant for the time it was arrear in others hands and the owners remedy to have contribution against all others that enjoyed the Land before him is by Suit in Chancery and here Parkhurst by the Decree had contribution against all others that enjoyed the Land charged and suffered arrerages to accrew in their time Lastly Resolved that the notice of the Rent given to Parkhurst after the Surrender and agreement for the Purchaser and before his admittance was a sufficient notice within the Statute if notice in this case had been requisite for that Parkhurst was no compleat and absolute Purchasor before admittance so of notice given to a Purchasor of a Charitable use chargeable upon the Land mean between his agreement and sealing of the Writings before the perfecting of the settling of the Estate in him by Attornment Livery or Inrolment of the Deed of Conveyance Hennington Hastings in Com. Warr 6. Jacob ONe Humfrey Davis erected an Almshouse in Hennington Hastings for eight poor men and being Seised of lands in Tennington Monton and â—urbery then let for 10 l Rent per annum doth devise the rents of his said lands for maintenance of the said poor in the said Almshouse and dyes his heir paies the Ten pound yearely for maintenance of the poor at the Almshouse and at the end of the term doth Demise the land at 40 l per annum The Commissioners doth Decree the whole land for maintenance of the Charitable use and the arrerages of the improved Rent taken by the Heir from the time of the expiration of the old Lease until the Decree and that the new Lease shall be void and surrendred and upon the Heirs appeal in Chancery and acceptions taken to the Decree the Lord Keeper referred the Case to the Judges principally whether if one Devise the Rents of his Land to a Charitable use if by this Devise the Land passed and they certified their opinions that by Devise of the Rents of the
lands to a Charitable use the land it self did passe and in twelve Jac. in the Case of one Kerry and Dethick it was adjudged that if one Devise to another and his Heires the Rents and Profits of his Lands that this is a Devise of the Land it self also they resolved that when one Deviseth the Rent of his Land to a Charitable use it shall be taken largely for a Devise of the Rent then reserved or afterwards to be reserved upon an improved value and the Lord Keeper did afterwards confirm the Commissioners Decree in all things The Schoole of Thetfords Case upon a Bill exhited in Parliament 8. Jacobi 8. Coke fol. 130. LAnd of the value of 35 l by the year was by Sir Thomas Fulmerston 9. Eliz. Devised to certain persons in Trust and their Heirs for maintenance of a Preacher Schoole master and poor people in Thetford and by the Will a special distribution was made how much the Preacher Schoole-master and poor should have amounting in the whole unto 35 l by the year which was the value of the Land at the time of the Devise and afterwards the land increaseth to be by the value of 100 l by the year and upon a Reference to the Chief Justices and Judge Walmsley they certified their opinions that the Revenew of the Lands shall be imployed to increase the several stipends of the persons appointed to be maintained by the Devisor and if any surplusage do remain it shall be imployed for the maintenance of a greater number of people and nothing shall be converted by the Devisees to their own use for that it appeareth by the distribution of the Devisor that he intended that all the Profits of his lands shall be imployed in the Charitable works by him Founded and left nothing to his Heirs or Executors of the Profits of his Lands as they were in value at his death and as if the value of the Lands had decreased the poor should have lost in their stipends so when the Revenue of the Revenue of the Lands increase they shall gain and the Lord Coke said that this resolution did concern all the Colledges in the Vniversities and elsewhere for when the lands were first given for their maintenance and that every Scholler should have a penny half peny a day this was then a competent allowance for a Scholler in respect of the price of victuals then and yearly value of the Land and now the price of victuals being increased the first maintenance for Schollars is not competent for them and as the value of the lands increase so ought the allowance for the Schollars to increase for the Colledges seised in Jure Collegii to the intent that the members of the Colledge shall be maintained according to the intent of the Founder which is that all the Revenue and Increase of the Profits of their Lands shall be bestowed in the works of Charity which the Founder hath expressed and that nothing should be committed to any other private uses for panis egentum est vitae pauperum qui defraudat eos homo sanguinis est and upon conference with all the Judges of England they agreed to the opinion of both the aforesaid Judges and both Houses of Parliament passed the Bill accordingly and the King assented to the Bill Dame Billingsleys Case 12. Jac. THe Lady Billingsley being a feme covert and Administatrix unto Martin her first husband made her Will and gave 400 l unto Charitable uses out of 1800 l debt due unto Martin upon a Statute and dyes Administration of Martins goods is committed unto others the Executors of the Lady Billingsley prove the Will and have asseâ—â— Commissioners for charitable uses make a Decree against the Executors for payment of the 400 l given by her unto the Charitable use Upon an Appeal the Executors take exception against the Decree first that the Will is void being made by a feme covert for that the Demise of the Charitable use is to be paid but of money due upon a Statute which is a thing in action and the Administrators of Martyn have now the debt out of which the charitable use ought to be payd but the Lord Keeper did confirm the Decree and declared that the Will of a Femecovert is not meerly voyd unlesse her Husband did contradict it and it shall stand good in this case and be a good Declaration of money to a charitable Use within the Statute Secondly this Declaration shall be good to charge her Executors to pay the charitable use it being found that they have Assets and they shall be liable to pay it out of her Estate but it shall not charge the Administrators of Martin for that they be Administrators to another and claimed immediately from Martin above the Will Decimo quinto Jac. Collisons Case COllison seized of Lands in Fee in Pape street of Eltham in 25 H. 8. Deviseth the Rents of his Lands to his Executors for reparations of High ways within the Parish for ever and upon a Reference to Mountague and Hoboard chief Justices out of the Chancerie they certified that this was a good Demise of the Land and that if one do Demise the Rents and profits of his Lands to another and his Heirs this is a good Demise of the Land it self Secondly although this was a voyd Demise in Law because it was made in 25 H. 8. at which time no Land was Demisable by the Common Law but customary Land and the Statute of 32 34 H. 8. were made divers years after yet by the Statute 43 Eliz. it is made good and shall be taken within that Statute for a good limitation and appointment to a charitable use and it was Decreed according to their certificate Sir Tho. Middletons Case 1617. SOldiers and Marriners by a voluntary contribution amongst themselves abates out of their wages of six shillings a Month 4 d by the Month and he which taketh five shillings by the Month 3 d by the Month and appoints this to be payd to Sir Tho. Middleton to the intent that he shall imploy it for relief of maimed Souldiers and Marriners upon the Seas their wives and children and Sir Tho. receives by this appointment 400 l which he keeps in his hands about twenty years This voluntary contribution was made by the Marriners and Soldiers attending Sir Francis Drake and Sir John Hawkins in their voyages to the West Indies upon a Commission upon the Statute of Charitable Vses this voluntary agreement and constitution of the Souldiers and Marriners was proved before them and that Sir Tho. Middleton had received by reason thereof 400 l which he had detained in his hands twenty years The Commissioners make a Decree for payment of the said money with some damages and upon Appeal to the Lord Keeper he confirmed this Decree Rivetts Case 15 Jac. A Copyholder of Land in Fee Deviseth the same to a charitable Use without a surrrender Commissioners make a Decree for the Land and
upon Appeal the Decree was confirmed for although it be a voyd Devise by the common Law yet it is a good limitation and appointment of Land to a charitable use and it shall bind the Heir but not the Lord for his Fine This Devise was made unto the Devisors Son and Heir and his Heir upon condition that he and his Heirs should imploy the profits of the Land for the relief of Stow Market in Suffolk and after the Devisor died without a Surrender to the use of his Will In 6 Jac. the Heir having sold the Land to one Flick for valuable consideration of money sues out a Commission upon the Statute of charitable Vses by fraud and covin between him and Flick to discharge this Land of the charitable use upon which Commission it was proved before the Commissioners that Flick had any notice of this charitable use but it was proved that the Heir that sold the Land had Assets both in Law and Equity to give allowance out of his Estate to maintain this charitable use whereupon the Commissioners Decreed that the Son and Heir should grant out of his own Land the summ of five Marks and to maintain this charitable use it being then proved that the Land Devised for the charitable Use was of no great value and they further Decree that Flick should hold his Land discharged of the charitable use And this Decree being certified into the Chancery and prosecuted by the Heir and Flick with intent to discharge the Land Devised of the charitable use the Lord Keeper confirmed it Afterwards the Parishoners of Stow Market having notice of this fraud and that the Land Devised was worth 7 l 10 s per ann. they in 14. Jac. sue out another Commission upon the said Statute and before the Commissioners it was proved that Flick had notice of this charitable use before he bought the Land Secondly it was proved that the first Commission was sued out by fraud and combination between the Heir and Flick on purpose to discharge the Land Devised of this charitable use Thirdly it was proved that the Land Devised was worth 7 l 10 s per an. And fourthly that the Heir had not payd the 5 Marks Decreed by the former Commission to be payd upon all which proofs the latter Commissioners Decree Flicks Land for maintenance of the charitable use appointed and the Jury having found the former Commission to be prosecuted by fraud and combination as aforesaid they Decree that Flick shall pay the full value of his Land by the year to the charitable use from the time of his Purchase And lastly they Decree that the Heir that ought to have paid the 5 Marks per ann. for divers years and hath not paid it at any time should pay the arrerages and then his Land to be discharged from further payment of it This latter Decree being certified in the Chancery Flick took exception that the second Commission issued out illegally there having been a former Commission and Decree to discharge the Land of the charitable use which was confirmed by Decree of this Court which ought to be finall and is not to be reversed but in Parliament according to Andrew Hynstors Case before and if a Commission upon a Commission should issue out upon this Statute such multiplicity of Suits would arise as that it would prove inconvenient and multiplicity of Suits is not allowed in Law But the Lord Keeper did confirm the second Decree because of the fraud and combination between the Heir and Flick in suing out the first Commission which was found by the Jury and proved before the L. Keeper and therefore he now reversed the first Decree and confirmed this for that by the Law Fraus dolus nemini patrociniam debet but if a Decree be legally made without fraud by the Commissioners for charitable uses and upon Appeal this is confirmed in the Chancery and where a Decree is made by Commissioners for charitable uses and this Decree confirmed in Chancery if the Decree be not performed accordingly now no Commission need be sued out for upon an Affidavit made of a breach of the Decree an Attachment and other Proces of course is to issue out to compell the parties concerned to perform the Decree yet if a second Commission do issue out it is not illegall if nothing be decreed against the first Decree and upon this second Commission they are to decree by form of the first Decree if they find a breach Barnard Hides Case TRinity 4 Car. Barnard Hides Case against the Parishoners of Gillingham Darford and Sutton in Kent Katherine Banne grants by Deed a Rentseek out of 208 acres of Land for relief of the poor in those Parishes and limits this to commence after her death and gives seisin of this in her life the Rent is behind for thirty six years Hide Purchaseth the Land having notice of the charitable use and in the Grant there was a nomine poenae of 50 s if the Rent be not paid by her Heirs within fourteen days after it was due by the Grant and it was found that Hide had held the Land seven years upon a Commission for charitable uses the Commissioners Decree that Hide shall pay all the arrerages for thirty six years and also the arrerages of the nomine poenae for seven years being the time he had enjoyed the Land and Decree that the Grantor shall distrain for the Rent for ever after And the Commissioners Decree being returned in Chancery the Lord Keeper referred it to the Judges who resolved these points First that Hide should pay all the arrerages for thirty six years for that the Land is chargeable with the Rent in whose hands soever it cometh Secondly that the seisin given by the Grantor in her life is good although the Rent did not commence or was in esse at the time of the seisin given Thirdly if Land or Rent be given to a charitable use and misimployed a Purchasor which hath notice of the Gift shall not be further charged then during his own time but where the Rent is concealed a Purchasor shall answer for all the time of the concealment for the Land is a Debtor transit cum onere Fourthly if a Rent be granted out of Land to a charitable use and one buys the Land for a valuable consideration of money having no notice of the charitable Use and Rent yet the Rent remains because it is collaterall to the Land and another thing and the notice required by the Statute is to be given as well of the Land as of the charitable use Fifthly resolved that the Purchasor shall not pay the arrerages of the nomine poenae because it was a personall charge upon the Heir who ought to have paid the Rent and it doth not charge the Land Sixthly when the Heir or others charged to pay a charitable use do break the trust the Commissioners may transfer the trust unto others as to the Churchwardens or
Fee of houses in Grays-Inn Lane London gave these houses to certain persons in Trust to build a School at Rugby in the County of Warwick and upon breach of the Trust a Commission was taken out in Warwickshire to enquire of this Gift and by a Jury there the Gift and breach of Trust was found and a Decree made by the Commissioners in that County to settle the lands according to the Donors Will and upon an Appeal the Decree was reversed for the Inquisition and Decree was not made nor found by Jurors and Commissioners of the County where the Lands given to such uses do lie the words of the Statute be To enquire by the oaths of twelve men or more of the County of such gifts limitations and appointments and of the breaches of Trust of such Lands and Goods c. which is intended to be by Jury and Commissioners of that County where the Lands do lie Kensons Case 41. Eliz. REsolved that a Copyhold may be charged or given to a charitable use Wingfields Case 4. Car. MOney was given for the good of the Church of Dulk and this was resolved to be a good Gift notwithstanding these generall words Goffe cont. Webb 44. Eliz. HVnt seised in Fee of the Rectory of Haynes in the County of Wilts Devised the same to be sold and the Money to be distributed unto twenty of the poor of his kindred and by Egerton and Popham this was adjudged a good Devise notwithstanding it doth not appear that he had any poor kindred Champion contra Smith 3. Jacobi RIdley seised of Copyhold land in Barking in Essex did Devise the same to the Parson and Churchwardens of in Thames-street London to the end that they and four honest men of that Parish should sell this land and imploy the Money for the poor and charitable uses in that Parish And upon an Appeal made it was objected that the Devise was void because the Parson and Churchwardens were not a Corporation to take lands out of London nor to sell it for such uses but it was Decreed that the Devise was good and that they had good authority to sell the same Stoddard 20. Jacobi SToddard Devised by parcell a yearly Rent of 10 l per ann. for ever out of his House called The Swan with 100 Marks in the Old Jury London for maintenance of two Schollars in Oxford and Cambridge and willed that one Hugh the Scrivener should put it into Writing which was done accordingly and this being found by Inquisition was Decreed and the Decree confirmed upon an Appeal for although by Law a Rent cannot be created or granted without Deed or Will in writing yet this Nuncupative Will was good to create the Rent to a charitable use by the words of the Statute of limitation or appointment for although it be not a good Gift yet it is a good limitation or appointment Mayor and Burgesses de Reading contra Lane 43. Eliz. A Devise was made to the poor people maintained in the Hospitall of St. Lawrence in Reading for ever Exception was taken that the poor were not capable by that name for that they were no Corporation yet because the Mayor and Burgesses were capable to take Lands in Mortmain and they did govern the Hospitall it was Decreed that the Defendant Lane should assure the Land to the Mayor and Burgesses for the maintenance of the said Hospitall Mayor of Bristoll against Whitton 8. and 9. Caroli A Man Deviseth Mony to a charitable use to be bestowed amongst poor people and the other of his goods to be imployed for such uses as his Feoffees shall think fit Resolved by the Lord Keeper and the Certificate of two Judges that although Bristoll be a Corporation yet the Devise to them is good Fisher against Hill 10. Jacob WHen no use is mentioned or directed in a Deed it shall be Decreed to the use of the poor although the Feoffees be gentlemen living out of the Town and no Inhabitants within the Town Peacock against Thewer Mich. 14. Car. LAnds are given to a charitable use if a Purchasor buys these lands not having notice of the charitable use it shall not bind the Purchasor but if a Rent be given out of lands to a charitable use and a Purchasor purchaseth the lands for money not having notice of the charitable use yet he shall pay the Rent for that he doth not purchase it but the land out of which the Rent issueth but he shall not pay any more arrerages of the Rent then what was encurred during his time of purchase but every occupier and owner must answer the arrerages for his own time See before Purkhursts Case and the Inhabitants of Wood and Barnard Hides Case before 2. Caroli Pennyman against Jennys LAnds were given to Churchwardens of a Parish to a charitable use although the Devise be voyd in Law it was Decreed good in Chancery by the words limited and appointed within the Statute Trin. 15. Car. Pember against the Inhabitants of Knighton MOney was given to maintain a Preaching Minister this is no charitable use named in the Statute yet by the Lord Keeper and two Judges it was Decreed to be good and the use a charitable use within the Equity of that Statute and the Executor was ordered to pay that money to the charitable use for maintenance of it Trin. 15. Car. Peustred cont. Panyer A Deviseth 20 l per ann. to a Preaching Minister and makes his wife Executrix and dyes leaving Lands and Assets in Goods the Executrix refuseth to buy Lands or a Rent of that value the Lord Keeper and two Judges Decree the Executrix to buy Lands to that value and to assure it for the charitable use Trin. 15. Car. Bramble against the poor of Havering A Feme covert maketh a Will and deviseth 30 s per ann. out of some of her own Lands to a charitable use the Heir submits himself to an Award and is bound to perform it the Arbitrators do Award the payment of it yet by Decree the Heir is discharged to pay it and that the Devise was voyd ab initio so of an Infant and other persons disabled in Law to make a Will or to Devise Lands Mayor de Londons Case LAnds were Devised to the Mayor and Chamberlain of London to the use of the Master and Governors of the Hospitall of St. Bartholomew London Resolved that Devise is good although the Corporation be not incorporated by that name but by the name of Mayor and Commonalty for the intent of the Devisor shall be observed and it appears that the Devisor intended to give it to the Corporation of London Also the Will is To maintain an Hospitall which is a charitable use which the Law ought to favour Pauperes de Chelmsford Sir Henry Mildmay Minh 1649. KIng Edward 6. founded a Free-School in Chelmsford and made it a Corporation of Guardians Master and Usher and gave Chantery to them and their successors to the value of 300 l
and to bestow the rest of the profits upon the reparation of certain Highways there Collison and his Wife died and the House descended to O. R. an Infant This Case being in Chancerie between the Parishoners and B. was referred by the Court to the Lord Hobart and the Lord Chief Baron Tanfield who resolved it clearly that though the Devise were utterly void yet it was within the relief of the Statute of 43. Eliz. within the words limited and appointed to charitable Vses This Decree was lately confirmed by the Lords Commissioners Keepers of the Great Seal for that it fully appeared to them that it was the true intent and meaning of A. H. the Donor that all the lands in question should go to the Hospitall Inquisitions AN Inquisition taken c. Before c. By vertue of a Commission under the Great Seal of England bearing date at Westminster the 6. day of M. in the year of our Lord God 1650. to them and divers other persons dwelling and inhabiting within the said County directed for the due execution of a Statute made in the high Court of Parliament holden the 27. day of O. in the 43. year of the Reign of our late Soveraigne Lady Queen Eliz. Intituled An Act to redresse the misimployment of Lands Goods and Stocks of Money heretofore given to charitable Vses by the oaths of c good and lawfull men of the said County of D. who being sworn c. say upon their oath That J. T. late of L. Merchant deceased was in his life time and at the time of his death possessed of a personall Estate of great value And that the said J. T. did heretofore make his last Will and Testament bearing date the tenth day of O. which was in the year of our Lord God 1649. And by the same Will did nominate constitute and appoint W. L. of T. and T. H. of L. in the County of C. Gent. the Executor of the said Will And that afterwards the said J. T. did make a Codicil which was annexed to his said last Will and Testament and which he did appoint to be part of his said Will And that the said J. T. in and by the said Codicil did among other things make such recitall disposition limitation and appointment as followeth in these words That is to say And whereas I have not finished the Almshouses by me already begun and do intend that eight poor people of the said Parish of M. shall be placed therein when finished and receive fifty shillings a piece yearly by quartery payments for their maintenance during their lives and purpose that the same shall be so continued and supplied for ever with poor people of that Parish and with that yearly maintenance Now I J. T. Testator named in the said Will do hereby will and appoint mine Executors W. L. and T. H. in my said Will named to finish the said Almshouses with all speed out of the surpluss of my Estate not disposed by the said Will nor by this Codicil and likewise therewith to purchase so much Freehold land in fee simple and settle assure the same upon Feoffees for the maintenance of eight poor people of M. Parish aforesaid for ever to be placed in the said Almshouses at M. aforesaid as shall be convenient And the Jurors aforesaid do further say upon their oaths That the said J. T. afterwards that is to say on the 22th day of D. died And that the said W. L. and T. H. proved the said Will and Codicil of the said J. T. and took upon them the execution thereof And that they the said W. L. and T. H. after the death of the said J. T. did finish the building of the said Almshouses before mentioned out of the Estate of the said J. T. And that the said T. H. did place eight poor people in the said Almshouses there But the Jurors aforesaid do likewise say upon their oaths That the said W. L. and T. H. in the said Will of the said J. T. named have not nor either of them hath out of the Estate of the said J. T. appointed or limited for that purpose or otherwise as yet purchased settled or assured Freehold Land in Fee simple of the clear yeary value of 20 l by the year as by the said Will and Codicil is intended and appointed upon Feoffees or Trustees for the maintenance of eight poor people of M. aforesaid for ever placed and to be placed in the said Almshouses as by the said Codicil is directed limited and appointed And that in further breach of the Trust in them the said W. L. and T. H. reposed in and by the said Will and Codicil They the said W. L. and T. H. have not paid unto the poor people formerly placed in the said Almshouses and now remaining there namely A B. c. their severall and respective yearly allowances of 50 s the year appointed them by the said J. T. as aforesaid by the space of two years ending at the Feast of the Annunciation of the blessed Virgin Mary last past amounting in all to the summ of 20 l but do detain and withhold the same money from them the said poor people And the said Jurors do further say upon their oaths That the said W. L. and T. H. have Assets of the said J. T. in their hands of the surpluss of his Estate not disposed of by his said Will and Codicil sufficient to purchase so much Freehold land in Fee simple as may be convenient for the maintenance of eight poor people placed and to be placed in the said Almshouses in such manner as the said J. T. hath in and by his said Will and Codicil willed directed limited and appointed In Witnesse c. AT S. in the said County the 19. day of J. in 11. year of the Reign of our Soveraign Lord Charles by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. Whereas a Commission under the Great Seal of England bearing date at West the 8. day of Febr. last hath been directed amongst others to Sir W.R. Knt. c. and to divers other persons dwelling and inhabiting within the said County authorizing them or any four or more of them to enquire as well by the oaths of twelve good and lawfull men or more of the said County as by other good and lawfull ways and means of all and singular Lands Tenements Rents Annuities Profits Goods Chattels Money and stocks of Money heretofore given limited appointed and assigned by any well disposed person to or for any the charitable and godly uses in the said Commission mentioned within the said County And of the abuses breaches of Trusts negligences misimployments not imploying concealing defrauding misconverting or misgovernment of the said Lands Tenements Rents Annuities and other things and for the setting down such Orders Judgements and Decrees as that the same Lands Tenements Rents Annuities Profits Goods Chattels Money and
the six and twentieth day of January in the thirtieth year of the reign of the late Queen Elizabeth did enter into the said Messuage and Premisses called C. and was possessed thereof and during his life took the Rents and profits thereof paying onely five Nobles per ann. out of the Rents and profits of the same Messuage and Premisses to the Churchwardens and Church of T. to the charitable use aforesaid and that E. H. Esq deceased son of the said T. also entred upon the Premisses and paid the five Nobles a yeare as abovesaid untill about twelve years last past at which time the said E. H. refused to pay it and that the same premisses is now divided into severall Tenements and that since the death of the said E. H. who died about two years before the Decree the said Exceptant T. H. Son and Heir of the said E. H. came to the said Messuage and Premisses called C. as Son and Heir to the said E. H. And the said Commissioners have ordered that the said Exceptant T. H. and his Tenants should surrender and yeild up the Possession of the said Messuage and Premisses unto the Church-wardens of T. aforesaid and to deliver up the Deeds and Evidences of the same Premisses and to pay unto the said Churchwardens the summ of twenty pounds to be imployed for the repairs of the said Church Unto which Decree this Exceptant T. H. doth except and conceives and is advised by his Counsel that he is not nor ought to be bound by the said Decree and Order made by the said Commissioners as aforesaid for the Causes and Reasons hereafter following And first For that it appeareth by an ancient Deed of Feoffment bearing date the two and twentieh day of June in the tenth year of the Reign of the late King Henry the eighth that one J. K. and J. his wife W. F. W. T. J. S. and R. M. did grant and confirm unto the before named A. B. R. F. R. F. and J. R. to the use of the said A. B. and his Heirs and Assigns forever all that the Messuage with the buildings gardens and Appurtenances called C. scituate lying and being in T. in the County of D. between c. as by the said Deed of Feoffment ready to be produced may appear Which said last mentioned Messuage and Premisses called C. is not the Messuage Lands and Premisses in the occupation of this Exceptant and his Tenants and which are charged and decreed to the charitable use by the said Commissioners as aforesaid For this Exceptant saith that the aforesaid Messuage or Tenement called C. so conveyed by the last mentioned Deed of Feoffment to A. B. as aforesaid was held of the Mannor of G. in the said County of D. by fealty suit of Court and the yearly Rent of two shillings eight pence per ann. as by the Surveys and Records of the said Mannor may appear which said Messuage and Premisses afterwards came to be the Inheritance of one R. E. and was then called by the name of C. otherwise E. Hall And this Exceptant further saith that the said R. E. being seized in Fee of the said Messuage and Premisses did upon or about the twelfth day of November in the eighth year of the Reign of the late Queen Elizabeth acknowledge a Statute of one hundred and fifty pounds unto one T. O. for the payment of the summ of one hundred and sixteen pounds at a day shortly after which was not paid which Statute was extended about the tenth day of April in the fourteenth year of the Reign of the said late Queen Elizabeth upon the said Messuage and Premisses which was aftewards assigned over unto T. H. this Exceptants Grandfather upon or about the five and twentieth day of January in the fourteenth year of the Reign of the said late Queen Elizabeth And it appeareth by the said Extent that the said R. E. had sold the said Messuage and Premisses unto one S. F. and his Heirs by Deed bearing date upon or about the twentieth day of June in the twentieth year of the Reign of the said late Queen Elizabeth And this Exceptant saith that the said T. H. this Exceptants Grandfather having the said Premisses so in Extent and the same being but of small value and the money that was owing thereupon being more worth then the said Messuage and Premisses he did by his Deed bearing date upon or about the five and twentieth day of January in the thirteenth year of the Reign of the late Queen Elizabeth grant to severall Trustees one Annuity or yearly Rent of fourty six shillings eight pence to be issuing and going out of the said Messuage called C. to be imployed for the repairs of the Parish Church of T. aforesaid which said summ of fourty six shillings and eight pence is the seven Nobles mentioned in the said Decree And this Exceptant saith that when the said Extent is ended the inheritance of the said Messuage and Premises will come unto T. F. Son and Heir of S. F. deceased as by an Office after the decease of the said S. F. found at L. the three and twentieth day of November in the four and fourtieth year of the Reign of the late Queen Elizabeth may appear which said Massuage and Premises last before mentioned if any at all ought onely to be charged with the said charitable use and none other The second Exception And secondly This Exceptant saith that the Messuage and Premises in the Decree mentioned to be in this Exceptants occupation and the other Messuages and Premises therein mentioned to be in the occupation of him this Exceptant and his Tenants are not the Messuages and Lands given to the said charitable use nor ought not to be charged therewith for this Exceptant saith that the late King Edward the sixth by his betters Patents under the great Seal of England bearing date the tenth day of April in the third year of his Reign did amongst other things give and grant unto one R. W. and W. P. and their Heirs all that his Messuage or Tenement called C. and all Lands Meadows Pastures Feedings and Hereditaments whatsover thereunto belonging then or late in the occupation of N. P. to hold of the said King as of his Mannor of C. in the County of D. in Fee-socage and not in Capite for all Rents Services and demands whatsoever And this Exceptant saith that the said Messuage called C. alias E. Hall charged and given to the said charitable use is held of the said Mannor of G. by fealty suit of Court and the yearly Rent of two shillings and eight pence as is herein before mentioned and therefore the same is differenced and plainly distinguished from the said Messuage and Premises called C. in the possession of this Exceptant and his Tenants And this Exceptant further saith that afterwards that is to say the nine and twentieth day of April in the third year of the Reign of the said
late King Edward the sixth the said R. W. and W. P. did by Deed of Feoffment and by other good Conveyances and Assurance in the Law convey and assure the aforesaid last mentioned Messuage called C. amongst other things to W. C. and J. W. and their Heirs and afterwards G. C. Son and Heir of the said W. C. who had the said last mentioned Messuage called C. by survivorship did by his Indenture of Bargain and Sale inrolled in Chancery dated the thirteenth day of October in the twelfth year of the late Queen Elizabeth bargain and sell the said last mentioned Messuage called C. amongst other things to W. L. and his Heirs and afterwards the said W. did by his Deed indented inrolled in Chancery dated the tenth of July in the thirteenth year of the Reign of the late Queen Elizabeth convey and assure the said last mentioned Messuage called C. unto T. H. and his Heirs which said T. H. was Grandfather of this Exceptant and the same is by descent and other good Conveyance and Assurance in the Law lawfully vested and come unto this Exceptant and he now is lawfully seised thereof and ought to hold and enjoy the same free from the said charitable use The third Exception And thirdly This Exceptant saith that the said T. H. his Grandfather at the time of his purchase of the said last mentioned Messuage called C. had no notice of the said charitable use and if the said Messuage were charged or chargeable therewith or liable thereunto as in truth it is not yet ought the same not to be charged therewith For that by the said Statute made in the three and fourtieth year of the Reign of the late Queen Elizabeth made for charitable uses it is provided and ordained that no Lands Tenements or Hereditaments given or appointed to any charitable uses shall be impeached by any Decrees or Orders of Commissioners for charitable uses the Purchasers having no notice of the said charitable uses The fourth Exception And fourthly This Exceptant saith that if it were true as in truth it is not That the said last mentioned Messuages called C. were charged or chargeable with the said charitable use yet ought not the said Order or Decree made by the said Commissioners any ways to impeach or charge the said Messuage or Premises with the said charitable use or any ways to deprive this Exceptant thereof For that by the said Statute made in the three and fourtieth year of the Reign of the said late Queen Elizabeth It is Enacted that the said Act for charitable uses shall not extend to give power and authority to any Commissioners for charitable uses to make any Order Judgment or Decrees for or concerning any Mannors Lands Tenements or other Hereditaments assured conveyed granted or come unto the Queens Majesty the late King Henry the eighth King Edward the sixt or Queen Mary by Act of Parliament surrender exchange relinquishment Escheat Attainder Conveyance or otherwise And forasmuch as it appeareth that the said Messuage and Premises last before mentioned called C. was by the said late King Edward 6. by his Leters Patents dated the eighth day of April in the third year of his Reign granted amongst other things unto the said R. W. and W. P. and their Heirs as is herein before mentioned And therefore if the same had been any ways given to the said charitable use as in truth it was not yet ought the same now to be free from the same by force and vertue of the said Act of Parliament The fifth Exception And fifthly This Exceptant saith that the said Commission grounded upon the said Statute to the said Commissioners directed in pursuance whereof they made their Decree is not returned into this Honourable Court into the Office of the Petty-bag as it ought to be for all which Causes this Exceptant doth humbly pray the said Order Decree may be reversed and made void and his said Messuage and Premises may be freed from the same And that this Exceptant may be dismissed with his reasonable costs and charges in this behalf wrongfully sustained Answers to Exceptions The Answer of J. L. and S. W. Church-wardens of G. T. in the County of D. Respondants to the Exceptions of T. H. Gent. by him taken to the Decree in the said Exceptions mentioned WHereas the said Exceptant doth except to and against the said Decree for that the Messuage or Tenement called C. given by the Will of A. B. therein named to the charitable use therein specified are not the Messuage Tenement and Lands in the occupation of the said Exceptant and his Tenants and which are charged and Decreed to the said charitable use And also for that the Exceptants Grandfather T. H. therein named had at the time of his Purchase of the Premises in the occupation of him and his Tenants no notice of the said charitable use and that the said Premises were heretofore conveyed by Letters Patents from King Edward the sixth And lastly for that the Commission directed to the Commissioners in the said Decree named wherein they made the said Decree was not returned into this Court at the time of the said Exception unto which Exceptions these Respondents saving unto themselves all advantages of Exception to the incertainties and insufficiencies thereof say That they are upon the matter strangers to the matters set forth by the said Exceptions having not lived very long in the said Parish and being no otherwise concerned then as Churchwardens thereof and it cannot be presumed they should know the facts and titles alledged by the said Exceptions of their own knowledge But they say that the said Exceptant was severall times summoned and heard before the Commissioners that made the said Decree and the Jury by them impannelled And he brought his Learned Counsel with him who urged before the said Jury and Commissioners who were learned in the Law and good and honest men before their Verdict given or Decree made the substance and matter of the said Exception and what ever could be alledged against the decreeing of the Premises and the same Decree was made upon a full hearing of both sides And one of the main points insisted on before the said Jury and Commissioners was the matter of the aforesaid first two Exceptions whether the Premises decreed to be charged with the charitable use were the Messuage Tenement and Lands given by the said Will yea or no it being a proper issue for a Jury of parcel or no parcel the same Premises in the occupation of the Exceptant were after a full and deliberate hearing and evidence on both sides found by the said Jury to be the same Tenements and Lands devised by the said Will And the matter of the said two next Exceptions Whether the said Exceptants Grandfather had notice of the charitable use before or at his Purchase of the Premises or that the Premises were in the Crown yea or no being also proper for a Jury