Upon the First Division.

Four necessary Inci­dents to a Cha. Use.AS in all other Grants, so in a Gift to a Charitable Use, these four things are principally considera­ble; 1. The Ability of the Donor.Ability of the Donor. 2. The capacity of the Donée.Capacity of the Do­nee. 3. The instrumentThe Instrument. or means whereby it is given.The thing given. 4. And lastly, the thing it self, which is or may be given, to a Charitable Use.

Persons disabled to be Donors.Those persons which are disabled to be Donors by the Common Law, or by Statute, are disabled to give to a Charitable Use, such are Infants, Married Women, Ide­ots, Madmen, Lunaticks, Accomptants to the King, Bankrupts,Infants, Married Women, Ideots, Madmen, Lunaticks, Accomptants to the King, Bankrupts. &c.

An Infant may make a Feoffment to Cha. Use, with a Letter of Attorney to deliver Seisin. If he give Seisin, or Levy a Fine, these are only voidable. If a Feme Covert Levy a Fine to a Cha. Use, and survive the Baron, it is good; if the Husband survive, it is void.If an Infant make a Feoffment to a Charitable Use, with a Letter of Attorney, to deliver Seisin, this is meérly void; But if he Levy a Fine, or make Livery himself, these are but voidable, So,

If a Married Woman levy a Fine to a Charitable Use, this is good until it be reversed; If the Husband and his Wife levy a Fine of the Wives Land, and the wife onely declares the Vse: If the Husband survive, the Vse is void: but if the Wife survive, the Vse is good. A married Woman,A married Woman Executrix, nay give the Goods of the Te­stator to a Cha. Use. Executrix to another Man, may give the Goods which she hath as Executrix, to a Charita­ble Use.

An Ideot, Madman, Lunatick, make a Gift to a Cha. Use, and good, till Office found. A Bankrupts Gift to a Cha. Use, is good, till a Commission of B. executed. An Accomptant may do the like and good, till he be found in­sufficient.If an Ideot, Madman, or Lunatick, make a Gift to a Charitable Use, it is good, until an Office be found of their Ideocy, &c.

If a Bankrupt make a Gift to a Charitable Use, it is good, until a Commission be awarded and executed. So, if an Accomptant make a Gift, it is good, until it appear­eth, he is not sufficient otherwise to make satisfaction.

May be Donees, Feoffees, &c.Persons disabled to be Donors, may be Doneés, or Feoffées to Charitable Use, and such as cannot be Feof­fées to other Vses, may have Lands to a Charitable Use:

Feoffment to Dean and Chapter, to per­form a Cha. Use, good.If a Feoffment be made to a Dean and Chapter, upon condition to perform a Charitable Use, it is good, though they connot be seised to another mans use.

Bankrupt, Ac­comptant, Recusant, may be Feoffees to a Charitable Use. Daughter and Heir gives Land, &c. and then a Son born, the Son shall avoid the Gift. The Father Feoffee up [...]n conditions, gives to a Charita­ble Use.A Bankrupt, an Accomptant, a Recusant may be Fe­offees, or Donées, to a Charitable Use.

If the Daughter being Heir, gives the Land, discend­ed to a Charitable Use, and then a Son be born, The Son shall avoid the Gift.

But if the Father had beén a Feoffeé, upon condition, that he or his Heirs should give the Land to a Charitable [Page 139] Use, and the Daughter had made such a Feoffment before the birth of the Son, that should have bound the Son;Shall bind the Son. because it was no more then the Son himself should have performed, by reason of the condition.

A Gift was made to a Parson and his successors,A Gift to a Parson and his Successors, to the use of a Pa­rish, good. to the use of the poor of the Parish: the Parson made a Lease for 30 years, The Lesseé did not perform the Vse, and the poor made an Entry; In this case it was resolved, That the Gift was good: and that the Lease for so many years was good also. Notwithstanding the Statute 13 Eliz. Cap. 10. And the Reasons, 1. Because it was not an­tient Glebe of the Church. 2. Because it could not tend to the impoverishment of the Successor; insomuch as it was given to a Charitable Use. Banisters Case in the Star-Chamber, 44 Eliz.

Lands are given to an Ideot for a Charitable Use, Lands given to an Ideot, good, till Ideocy be found. this is good, until an Office find him an Ideot; but after Of­fice found, it shall be void, during his life; and then after his decease, it shall be revived in his Heir.

A Gift made unto a married Woman,A Gift to a Married Woman, void, if her Husband disagree. if her Husband disagreé. The Gift is void.

If Lands or Goods be devised to one by Will,Devisee by Will, granted by Deed, compellable to per­form the Cha. Use. or a Re­mainder limited to one by Deéd, to perform a Charitable Use. If the Devisée will refuse the Legacy, or the Gran­tée wave his Remainder, and that by Fraud or Covin, they are compellable to take the Land, and to perform the Vse.

The King gives Land Probis hominibus de D. (which was no Corporation before) rendring a certain Rent,Where a Corporati­on, which was none before, shall conti­nue for a Cha. Use only. and the residue of the Profits, to repair a Bridge, &c. and af­ter the King releases the Rent or Farm; in this Case, though the reservation of the Farm was the cause of their corporation and capacity, which being released, their ca­pacity should séem determined; yet for the preservation of the Charitable Use, they shall continue a Corporation for that purpose only.

A Gift to a Parish by Deéd to a Charitable Use, A Gift to a Parish by Deed, to a Cha. Use, is void. A Devise by Will, good. is void, but a Devise by Will is good; and the Church­wardens, and Oberséers, shall take it in succession. And in London, the Mayor and the Commonalty. 40 Ass. 26.

A Charitable Use cannot be limited upon an Estate in Dower, nor upon a Gift in frank Marriage;A Cha. Use cannot be limited, upon an Estate in Dower. Nor upon a Gift in frank Marriage, nor upon exchanged Land. But it may be charg­ed upon a Joynture. Gift in Tail, by ren­der by Fine, upon a Gift, causa Matrimo­nii praelocuti. Release of right of Action, Entry, &c. or any thing valua­ble. nor upon exchange made of Lands.

But a Ioynture may be made to a Charitable Use, be­cause it may be upon condition; Vernons Case, Coke. 4. 2. And wheresoever a Condition is limitable, there a Cha­ritable Use is appointable.

It may be limited upon a Gift in Tail, by a Render by Fine, upon a Gift, Causa Matramonii praelocuti, up­on a Release of Right, Action, Entry, &c. or any [Page 140] thing valuable upon a bargain and sale of Land,Upon bargain and sale, it may be averr'd Upon a Feoffment without Livery. Upon a Reversion without Attornment. Upon a bargain and sale, without Inroll­ment. Wheresoever a con­dition is limitable, there a Cha. Use is appointable. Coppyholder surren­ders to the use of a Grammar-School. The Lord is compel­lable to admit the Tenant. If Surrender had been to a Corporati­on, the Law is other­wise. it may be averred, that it was to a Charitable Use upon a Feoff­ment, without Livery, upon a Grant of a Reversion, without Attornment, upon a Bargain and Sale without Inrollment.

If a Copyholder surrenders to another, to the use of a Grammar-Scool, the Lord of the Mannor is compella­ble to admit the Tenant, because it is not prejudicial to the Lords insomuch, as he hath but one Tenant, after whose death, his Fine is due, as it was before, and the use of the Land is only in the Corporation. Ranshaw & Ro­bottom's Case at Sc. Albans, Dower in the Chancery, 43 Eliz. Otherwise, if the Surrender had beén made to a Corporation; for then the Lord should have beén prejudi­ced in his services; so if the custom of the Mannor be to devise to one only, and to have a Harriot after his death; the Tenant may not surrender to two persons to a Cha­ritable Use, because the Lord is delayed of his Harriot.

Coppyholder surren­ders to the use of his Will.A Copyholder surrenders to the use of his last Will, and thereby devises, that the Parson, the Churchwar­dens, and four honest Men of the Parish of Alhallows, should sell his Copyhold,Deviseth Land to be sold for a Cha. Use. to be imployed to a Charitable Use. The Copyholder dyeth, his Heir is admitted, the Parson,The Heir compelled to surrender accord­ingly. &c. sell the Copyhold to J. S. the Heir was compelled to surrender to J.S T.H. Guiddys Case decreéd, 4 Jac. in the Chancery.

A Lease rendring Rent to a common Midwife, for poor Women, good.A Lease for years is made, rendring Rent to a com­mon Midwife, for poor Women: the Rent is limited, by reason of the Charity, though a reservation of Rent can­not be appointed to a stranger, by the Common Law.

Two joynt Tenants one released to a Cha. Use, the Use is well limited.If there be two Ioynt-Tenants, and one release to the other; to a Charitable Use, the Vse is well raised; but if two Ioyn-Tenants of a Rent, and one grants his part to the other to a Charitable Use, But a Grant from one to his fellow, is void. that is void, for one Ioynt-Tenant cannot grant to the other.

Land sold to a Cha. Use, after a Feoff­ment, with power of Revocation, the use is well raised.If a man make a Feoffment, with a power of Revoca­tion, and afterwards he sells the Land to a Charitable Use, the Vse is well limited, and he cannot revoke. If a man devise a term for years, to a Woman, during her life,Residue of a term charged with a Cha­ritable Use. the remainder to another to a Charitable Use, though the remainder which is limited, be void, yet the Execu­tors of the Woman, which shall have the residue of the term, shall be charged with the Vse.

Three Parishes. Money given to be Lett out by the Churchwardens at Interest. Relieva­ble in Chancery, but not by this Statute.If a man bequeath 300 l. to threé Parishes, equally to be Lett out, at 5 l. per 100. by the Churchwardens of each Parish, this Legacy is not within this Statute; but yet the Chancellors may give remedy by Equity in the Chan­cery.

If Money be given to be put out at 5 l. per Cent. and the Interest to be given amongst the Poor,Interest of Money given to a Cha. Use, not Charity, because grounded upon Usu­ry, which in it self is unlawful. this is no Charitable Use within this Statute, because it de­pends upon Vsury, which is unlawful.

If a man devise that the Executors or Administrators of his wife,A Devise to charge the Executors, &c. of a Feme-Covert, with a Charity, is void. If that Feme take an­other Husband, & he have Assetts of the first Testator, it is good, as to the As­setts. shall pay 100 l. to be Lett out to young Tradesmen, this Devise is void, because he cannot charge the Executors or Administrators of his wife. But if that Wife take another Husband, and he hath Assetts in his hands, of the Goods of the former Husband, those shall be lyable to the Charitable Use; and these observations he made upon a Decreé, in Jo. Haward's Case, Ann. 40 Eliz. A Charity given to the poor of an Hos­pital, being no Cor­poration, decreed to the Mayor and Bur­gesses, in whose Pre­cincts the Hospital was, to the use of the poor of that Hospi­tal.

G. gave Lands to the Poor of the Hospital of Reading, 44 Eliz. now the Hospital was no Corporation, and so not capable; but the Mayor and Burgesses were Governors, and Supervisors of the Hospital, the Land upon Equity, decreed to the Mayor and Burgesses, to the use of the poor to that Hospttal.

Where the things given may pass without Déed,A Charity may be a­verred, where it pas­seth without Deed. there a Charitable Use may be averred by witnesses; but where the things cannot pass without a Deéd,Where they pass by Deed, é contra. there Charita­ble Uses cannot be averred, without a Deéd, proving the Vse.

If a Fine be Levied, Sur-Grant & Render,A Charity cannot be averr'd against a Fine, Surrender, Grant, and Render. a Charita­ble Use, cannot be averred without a Déed: but if a Fine he levied, and a Vse expressed in another Déed,If the use pass by an­other Deed, & upon Confidence, &c. an averrment is good by paroll. That ex­pressed Vse may be averred without Déed, to be a Charita­ble Use, and upon confidence; so may an Averrment be taken by paroll of a Charitable Use, which is agreeable to the Vse expressed.

A Ioynture made, to bar a Woman of her Dower,A Charitable Use upon a Deed, to bar a woman of her Dower, cannot be a­verr. d' cannot be without Déed; and therefore a Charitable Vse, limited upon such a Ioynture, cannot be averred without a Deéd.

If a man make a Feoffment, upon condition,Upon the re-entry of a Feoffor of a Cha­rity, after Condition broken, the use is de­stroyed. that the Feoffeés shall perform a Charitable Use; if the Feoffor himself re-enter for the Condition broke, the Vse is de­stroyed: but if his Heir enter for breach of the Conditi­on, he shall perform the Vse,But if his Heir enter ut supra, he is bound to perform the Use. because he comes in upon Confidence, and the Condition was compulsory to per­form the Vse.

A man being seized of two Acres of Land,A Devise to two Sons of two Acres, for a Cha. Use, one Bur­rough-English, the o­ther at Common Law, both are chargeable with the Cha. Use. the one of the nature of Burrow-English, the other at the Com­mon Law, hath two Sons, and deviseth both those Acres to both his Sons, to perform a Charitable Use. If the Condition be broken, the elder Son shall enter into the Burrow-English, and the younger into the Guildable Acre, and each shall hold his Acre, charged with the Vse, because the condition was penal and compulsory, to perform a Charitable Use.

5 things not charge­able with a Cha. Use. 1. Things of no profit2. Things incident to others, and unse­parable.3. Possibilities.4. Conditions.5. Copyholds, if pre­judicial to the Lord. Advowson in gross. A Way, Matters of Pleasure, as License to hunt in a Park. A Seigniory pro Fealty only, &c. cannot be granted to a Cha. Use, but may be re­leased or sold, and the Money raised, disposed of accord­ingly. An Advowson grant­ed upon condition, when the Church is void to a Cha Use. is a good limitation. Common Append­ment, and Annuity, pro consiti [...], cannot be granted. Entry upon condition broken, to perform a Cha. Use, the Gran­tee is chargeable.There be five manner of things which cannot be grant­ed to a Charitable Use, First, things that yield no profit. 2. Things that are incident to others and unseparable. 3. Possibilities of Interest. 4. Conditions. 5. Copy­holds, if any way prejudicial to the Lords.

An Advowson in gross, a way, or passage, matters of pleasure, as License to hunt in a Park, A Signory pro Fealty only, &c., cannot be granted to a Charitable Use: but they may be released to a Charitable Use, or sold, and the Money provenient, disposed to a Charitable Use.

So an Advowson may be granted, upon condition; that so often as the Church shall be void, a poor Scholar of such a Colledge shall be preferred, and the limitation is good.

A common Appendant, an Annuity pro consitio impen­dendo, and such things not separable, cannot be granted to a Charitable Use.

If a man make a Lease for life, upon condition, and af­ter grants his Reversion, upon condition to perform a Charitable Use, if the Grantée enter for Conditions bro­ken, he shall presently hold as charged with the Vse.

A Condition in gross may be released to a Charitable Use, but it cannot be granted.

The Heir not charge­able with a Cha. Use, after a Mortgage charged therewith.If one Morrtgage or Devise, that if his Heirs redéem the Land, he shall perform a Charitable Use, the Heir is not chargeable, for his Father had but a bare Condition; and yet if the Mortgager Devise, that his Executors shall pay the Money to redeém the Land; or if he devise Money to his Heir,But if the Heir re­deem the Land, it is chargeable. to redéem the Land, and devise far­ther, That when the Heir hath redeémed the Land, he shall perform a Charitable Use, this Lease is well limit­ed, and the Heir is chargeable with it.

The Statute of Wills binds not this Sta­tute. Two parts devised to pay debts, a third to a Cha. Use, the Heir charged with the Use by descent.The Statute of Wills, binds not this Statute; for if Tenant by Knight-service dispose of two parts of his Lands, for the advancement of his Wife and Children, &c. and after devise by his Will, That his Heir shall perform a Charitable Use with the third part; the Heir shall be charged with the Vse, because he is in by di­scent.

Heir by Covin denies tender of Money, gi­ven to a Cha. Use, upon sale of Land, decreed the Land charged therewith to be sold, and debts paid.The Mortgager devises, that his Executors shall pay the Money to the Mortgagée, and that then they shall sell the Land, to pay his debts; the Executors tender the Money at the day, the Heir by Covin denies, that they shall tender in his name. It was decreéd 42 Eliz. in Chancery, that the Mortgageé should receive the Mo­ney, and that the Executors should sell the Lands, and pay the debts. Wormeston & Price's Case. The like rea­son of a performance of a Charitable Use, which is equally, if not more favoured in Equity than payment of debts.

If a man appoint by his Will,All that shall be re­covered upon an Action of Debt, &c. given to a Cha Use, the Use is well limit­ed. that his Executors prosecute an Action of Debt, Detinue, Covenant; &c. and that all which they recovered in such an Action, shall be imployed to a Charitable Use. This Vse is well li­mited, upon such a possibility &c.

If one have a term for years to a Charitable Use, Damage recovered by a Termer, in an Action of Covenant upon an Ejectment given to a Cha. Use, is a good limitation. and it is evicted, all the damage which the termer shalt re­cover, upon an Action of Covenant, shall be imployed to the Charitable Use.

The same Law, of Land recovered in value for it,The same Law, of Land, recovered in value. So of a Tenancy, if it Escheat, &c. shall be lyable to the Charitable Use; so shall a Tenancy, which escheats to a Seniory, that was granted to perform a Charitable Use.

Ʋpon the Second Division.

The King may name Commissioners, and seal their Commission himself.THe King may name the Commissioners, and seal the Commission himself, notwithstanding the words of the Statute; That the Lord Chancellor, &c. shall award Commissions, &c. but Commissioners, which have the custody of the Great Seal, during the vacancy of the Chancellorship, cannot award a Commission by vertue of this Act.

Commissions in the vacancy of a Chan­cellor, cannot. A Commission under the Privy Seal, gives no authority. If the King com­mand a Commission, this shall be said to be awarded by the Chancellor. Under the word (Lands, in the County Palatine, are com­prehended Com­mons, Rents, Appren­der, &c. Goods within the County Palatine, and to be imployed in some place out of the Dutchy.A Commission awarded under the Privy Seal, gives no authority to proceéd according to this Statute. But if the King Command the Chancellor to award a Com­mission, under the Great Seal, this Commission shall be said to be awarded by the Chancellor, though the King gave direction.

For Lands within the County Palatine; under the word Lands, are comprehended all things, either issuing out of Lands, as having dependen [...]y upon Land, as Commons, Rents, Apprendre, &c. the Chancellor of England, only, shall award a Commission.

But for Goods given to Charitable Use, Or if Lands given, lye without, and the Use within. Several Commissions by several Chancel­lors, under both Seals, must be a­warded. within the Dutchy. If the Lands given to Cha. Uses, lye within the Dutchy, and the imployment be appointed in some place, out of the Dutchy; or if the Lands lye without, and the imployment is limited within the Dutchy, in these cases, either several Commissions may be awarded by the seve­ral Chancellors, or one Commission under both Seals,If Rent be given out of Land in one County, with a clause of Distress in another, Commission must be to the Coun­ty, where the Land is charged. If two Counties joyn, one Commissi­on is sufficient, but always several In­quisitions in each County. A Bishop Elect, is no Bishop within this Act. If Consecrate before the Teste of Commis. it is sufficient, though it be the same day A Bishop Suffragan not within this Act. may be sufficient. But if Rent be given out of Land in one County, and a Clause for Distress limited in another County, there the Commission must be to that County where the Land lies, out of which the Rent is granted.

Where the Counties may joyn, there one Commis­sion is sufficient; but always there must be several Inqui­sitions in each County.

To the Bishop and his Chancellor. A Bishop elect, is no Bishop within this Act. But if he be consecrate before the Teste of the Commission awarded, it is suf­ficient; though it were the same day.

A Bishop Suffragan, although he hath Episcopal Iu­risdiction, yet he is no such Bishop to be named in a Commission, upon this Statute.A Bishops Chancel­lor, named after the Award, cannot med­dle. A Commis­sion is awarded to a Bishop, and his Chancellor, whom the Bishop names after the award; this Chancellor, cannot intermeddle in the execution of the Commission; for he was not Chancellor at the time of the awarding the Commission.

Though a Bishop be notoriously criminous,A Bishop notoriously Criminal, may be na­med, unless depo­sed. If a party, he ought to be omitted, upon mention of the speci­al matter. And so the Commissi­on good, though the Bishop be omitted. An Alien. A person Fined for Ryots, &c. may. But a Juror Fined for Acquitting a Fe­lon against Evidence, or one Fined for Fraud and Cousen­age, nor a Barritor nor any persons con­vict, may not be of the Commission. yet un­less he be deposed, he ought to be named in the Com­mission, But if a Bishop be a party interessed, he may be omitted upon special mention of the Cause, and so the Commission may be good, notwithstanding the omis­sion of the Bishop.

Persons of good and sound behaviour. An Alien of amity may be a Commissioner; so may a person that is Fined, or Ryots; or petty-misdemeanors; but one that was Fined, for acquitting a Felon against the Evidence given, when he was a Iuror, may not be a Commissi­oner; for one that was Fined for Fraud, or Cousenage, or a Barritor, and all persons convict, cannot be of the Commission.

No person that doth, or may pretend Title, No person pretend­ing Title, may be ei­ther Commissioner or Juror. Land devised to be sold for a Cha. Use, and none named to sell it, the Bishop must make the sale, but must be no Com­missioner. shall be named a Commissioner, or Juror: This proviso being made to corroborate a beneficial Law shall be taken largely: so that whosoever may have any finger in the Interest, or Titles, shall be excluded, from either being a Commissioner or Iuror. And therefore if a man de­vise Land to be sold for a Charitable Use, and names no person to sell it; In this case, the Bishop ought to make the sale, but he can be no Commissioner.

So it is with one that defrauds a Trust to a Cha. Use, and dies intestate.So if Goods be given to one in Trust, to a Cha. Use, and he defrauds the Vse, and dies intestate; because the Goods are presently in the hands of the B [...]sh [...]p, until Administration be committed, he cannot be named a Commissioner, for the pretence of Title he hath to the Goods,Unless he dies where bona Notabilia, are not to be found within the Bishops Diocess. unless the defrauders dyed in a peculiar Parish in the Diocess, exempt from the Iurisdiction of that Bi­shop.

The Commission ought to be awarded to five at the least,All Commissions are to be awarded to 5 at the least. because the words of the Statute are, or any four of them, and less then four cannot execute a Commis­sion.Less than four can­not execute a Com­mission.

All Commissions must be framed in the words of the Act. This Statute limits the form. Inquisition must be joynt of Gifts and Abuses, and not of either singly.The Commission must be framed in the very words of the Act, because the Statute limits the form; and the Inqui­sition must be according to the Commission, j [...]yntly of the Gifts, and Abuses, not of either of them alone.

And whereas it hath beén doubted heretofore, whether it were not requisite to have two Inquisitions; the first, as an Indictment to accuse the parties, the other before the parties being present, the Reader resolved, That one Inquisition is sufficient,One Inquisition without any Indict­ment, good. whereunto the parties interes­sed must be called.

A Commission to an Infant, not good. An Outlawed person after Reversal, may be named. If he purchase a Par­don, he is disabled.A Commission awarded to an Infant, who comes to age before Execution, he may not proceed; for the party ought to be able, at the time of the awarding of the Commission. But if one that is Outlawed, be named a Commissioner, and he reverse the Outlawry before Exe­cution, he may proceéd, for now upon the matter he was never Outlawed,An erroneous Out­lawry is no Outlaw­ry. because an erroneous Outlawry, is in truth no Outlawry; but if he purchase a Pardon of his Outlawry, yet he remains disabled, because the Par­don affirms an offence. So if the Commissioner were excommunicate at the time of Award,An Excommunicate person is disabled, though absolved af­terwards. and be afterward absolved; yet he continues still disabled to be a Commis­sioner.

One cited and sen­tenced for Symony, is disabled ab initio.If a Commisson be awarded to one that is cited for Simony, and after the Commission he is sentenced, and thereupon excommunicate; he is a person disabled to be a Commissioner,But if only cited, the Law is other­wise. ab initio. But if he had béen only cited, and no further proceédings against him, he might have executed the Commission. So may a man that is in­dicted of a Crime;One attaint and par­doned, is disabled. but if after the Commission award­ed, he be attainted, though he purchase a Pardon, yet he is still a party disabled to be any Commissioner up­on this Statute, and may not execute that Commission.

Tenant by suffer­ance. A Tutor are not excluded, but an Ex­ecutor is disabled from being either a Commissioner or Ju­ror.Neither Tenant by Sufferance, nor a Tutor, are persons excluded, by reason of Interest or Titles; but an Executor is disabled to be either Iuror or Commis­missioner, by reason of his pretended Right.

If the Goods be given to a general Corporation,Goods given to a Corporation gene­rally, as to the City of London; yet Free­men of London may be of the Jury. If to a Company, no Member thereof, may be either Commissi­oner or Juror. as the City of London, yet Fréemen of London may be of the Iury. But if the Gift were to an inferior Corporation, as to a company, as of the Mercers, &c. no Member of that Company or Corporation, may be a Commissioner or a Iuror.

Lands were given in Tail, in form of a perpetuity,Donee suffers a Re­covery to a Cha. Use, the Remainder can­not be either Com­missioner or Juror. the Doneé suffers a Recovery to a Charitable Use; he that was in the Remainder, cannot be a Commissioner, nor a Iuror, because he hath a pretended right, by reason of the perpetuity: and so resolved in Sir William Udalls Case, Mich. 3. Jac.

If a Commission be executed by five,If a Commission, 4 of 5 be without excepti­on, the Commission is good. and four of the Commissioners be without exception, it is well executed, though the fifth were a party interessed, &c.

No Commission ought to be awarded without a pre­cedent negligence, or misimployment supposed.No Commission to issue, without a supposed negligence precedent. Several Counties may be inserted into one Commission, and so one County and Franchise.

The Chancellor may joyn several Counties in one Commission, or the County, and a Franchise in the same County together: For the words of the Statute are large. It shall be lawful for the Chancellor to award a Commission into all, or any part or parts of this Realm.

Ʋpon the Third Division. Inquisitions, where to be taken, &c.

Inquisitions. Inquisition must be taken in the County where the Commissi­oners are appointed. Land in several Counties, may be in­quired in its proper County.THe Inquisition must be taken in that County, where the Commissioners are appointed.

If Land lying in several Counties, be given to a Cha­ritable Use, and a Commission is awarded only into one County, they may inquire for the Land in that County, and the Inquisition is good for that Land; but they can­not inquire for that Land in the other County, by ver­tue of that Commission,Land is local. because Land is a thing local, and tyed to a certain place; yet if another Commission be directed to the same persons in the other County, where that other Land lyeth,Several Commissions must issue for Lands into several Coun­ties, and several In­quisitions. The same Commissi­oners may decree Land in several Counties. they may take an Inquisition of that also; and so upon those several Inquisitions in di­vers Counties, taken, by vertue of such several Com­missions (they being the same persons) may make one Decrée for both, and it shall be good.

Rent out of Land in several Counties, may be decreed by one Commission.If a Rent issuing out of Lands, lying in several Counties, be given to a Charitable Use; there shall be awarded but one Commission, but the Commissioners must make several Precepts,Several Precepts, and several Inqui­sitions. and take several Inquisiti­ons in each County, and yet make but one Decreé for all, the Commissions must be awarded where the Land is.

Where the Land lies, Commission must ssue.If the Land given to a Charitable Use, lye in one Coun­ty, and the imployment be limited in another; if a Com­mission be awarded into the County where the Land lies, it is sufficient. But yet it were more Apt and Expedi­ent [Page 149] to have it awarded in both Counties.Land given in one County, & imploy­ment in another, Commission is good, if issued where the Land lies.

If Goods be given to a Charitable Use, the Commission must always be awarded to that County, where the im­ployment is limited.

The Commissioners for their inquiry are bound to the County, but not for their Decreé,If Goods be given. Commission where the Imployment is. for that may be made in another.

The Inquisition must be made, both of the Gift,Inquisition must be in the proper Coun­ty Commissioners are not bound to place for their Decree. Inquisition must be of the gift and abuse. Substance of either, is sufficient to a Jury. and the abuse, &c. not of one alone, for then it is imperfect and void.

If a Iury find the substance of the Gift, or abuse, &c. it is sufficient though they vary in some particulars, or find not the circumstances. And therefore,

If they find a Gift made per quendam ignotum, General Ʋse. A Gift per Ignotum, good. The Gift is the Sub­stance. General Ʋse. or quibusdam ignotis, it is good enough, for they have found a Gift, which is the substance; so if the Gift were made by Fine, and they find it was by Feoffment, or if it were by Feoffment to Vses, and they find it was given by Will, this is good enough, for the Gift is the substance, and the form of conveyance, but a circumstance.

So if they find the general Vse truly,If Jurors find the ge­neral Use good, particulars shall not hurt. though they miss in the particular, this is sufficient. And therefore,

If they find a Gift to provide Books for poor Scholars, and the Gift was to buy them Gowns, it is good enough, because the general Vse for poor Scholars, is truly found,A Gift to provide Books, and imployed in Gowns, is good. General Use truly found. If Gravel instead of Stone [...], it is good. Repairs was the ge­neral Use found. and Books, or Gowns are but particulars of the imploy­ment. So if they find a Gift to find Stones to repair High-ways, and the Gift was to buy Gravel to repair them, this is sufficient; For they truly found a Gift for repair of Highways, which is the general, though they missed in the particulars of Stones and Gravel.

So if they find a Gift to maintain poor Scholars in an Vniversity, it is well enough,Poor Scholars, in­stead of two poor Scholars. One Use instead of two is good. though the Gift were to find two poor Scholars, Students in Divinity, for the general, or poor Scholars, is found truly.

If there be two,If the other be found after. or more Charitable Uses limited by the Donor, and the Iury find but one, yet the Inquisi­tion is good for that, if the other be found after.

But if the Iury vary in any general Head,Variance in any ge­neral Use. (from the truth of the Gift,) limited in that Act, that Inquisition is void. And therefore,

If they find a Gift for relief of poor Scholars,If a Gift for maimed Soldiers, be imploy­ed for relief of poor Scholars. If for Marriage of Maids, & imployed upon High-ways these are void Inquisitions, because they fail in the general. which was for maimed Soldiers, or for repair of High­ways, where it is for Marriages of poor Maids &c. these Inquisitions are insufficient, because they fail in the general, which is of the substance of the Charitable Use.

Covyn with an Heir.Lands are devised to one for a Charitable Use, the De­viseé by Covin with the Heir, waves the Devise; this is a fraud inquirable.

The Feoffeé aliens in Mortmain, and purchases the Land of the King again, &c. this is a fraud.

Combination by Issue in Tail, with the Connusee in a Fine.Tenant in Tail grants a Rent to a Charitable Use, and levies a Fine, with proclamation, the Issue in Tail combines with the Conuseé, to bargain and sell the Land to his father, which lay sick, to the intent that his Fa­ther might dye seised, and the Rent might be avoided; this is a fraud.

Collusion by the Heir, with a Mort­gagee, and Refusal of a Legacy.A man deviseth a sum of Money to his Heir, to redeém certain Lands that he had Mortgaged, to the intent it should ve imployed to a Charitable Use, the Heir refu­seth the Legacy, and by collusion with the Mortgagée suffers the day to pass, and then redéems the; Land this is a fraud inquirable.

Land is given to a Woman to a Charitable Use, the Husband,Covyn by Husband, and disagreement to a Cha. Use. Younger Son after his Fathers, and el­der Brothers death, chargeable with a Cha. Use, though in by descent. by Covin, disagreés to the Gift, this is a Fraud.

The Father gives Land to his younger Son, upon condition to perform a Charitable Use; the Father dies, the elder Son dies, yet the younger Son shall be bound to perform the Vse, notwithstanding the condition was extinct by him by descent; and though the Father had re­leased the Condition, yet the same had béen lyable to the Vse.

Tenant for life surrenders with warranty in Feé to a Charitable Use, Lessor, upon a Reco­very in value, chargeable with a Charitable Use. the Leasor recovers in value, he shall hold that Land charged with the Vse for ever.

Twelve, a good Jury.If 16 be impannelled on a Iury, and 12 only agreé, yet this is a good Inquisition, according to this Sta­tute.

Commissioners may enquire by all other lawful means, as by former Inquisitions, Witnesses, Rentals, Accompts, Estreats, their own know­ledge.Besides this Inquisition, by the Oaths of 12 Men, the Commissioners may enquire by all lawful ways and means. Such are former Inquisitions, Witnesses, Rentalls, Accompts, Estreats, &c. and their own pro­per knowledge; And by these means they may supply the defects of the Inquisition, in matters of particularity and circumstance. As where the Inquest find a Gift to the Tradesmen of Bath, &c. The Commissioners by such further Inquiry, may supply the particular. To what sort of Tradesmen. So where the Iury finds a misim­ployment, the Commissioners may supply the time, how long it hath béen misimployed, &c.

But if the Commissioners cannot enquire by Deéds that are cancelled,By what not, viz. By Cancelled Deeds. Witnesses disabled, Records Reversed, nor upon the Parties own Oath. nor by Witnesses, that are disabled, no Records are Reversed, &c. neither can they examine the party upon his Oath.

The Commissioners cannot procéed without summon­ing the parties interessed to be present.Who to be summon­ed. Those parties only which are in possession,Parties interessed in possession, which have Right or Title. Pocket Titles may be omitte 2. ought necessarily to be summoned; and those which have Rights, Titles, Pre­tences, (or pocket Titles,) may be omitted, and yet the Inquisition good enough.

Lessée for years, the Reversion for life,Lessee of a Remain­der, over. In Remainder not. the Remainder over, the Lesseé must be summoned, and shall be bound by the Decreé, but those in remainder, shall not be bound, unless they were summoned.

If a Guardian by Knight-service be summoned,Guardian by Knight-Service. and the Ward omitted, yet the Guardian shall be bound.

If an Infant in soccage,Infant in Soccage, and his Guardian. and his Guardian be sum­moned, both shall be bound by the Inquisition, for an Infant is not excepted out of this Law.

So if a man that is not compos mentis, Non compos. be summon­ed, he shall be bound by the Decrée,His Heir relievable upon Petition. Like Law of an Ide­ot. because he is not excepted, but his Heir by Petition, by shewing of his Right, may be relieved, because his Ancestors were not Compos mentis, like Law of an Ideot.

If there be two Ioynt-Tenants, parties interessed,Two Joynt-Tenants. and one of them only is called, this shall bind the Moie­ty only, during the life of the other Ioynt-Tenant:One summoned, binds a Moyety. But if he was summoned, and fortune to survive the other, then the Inquisition shall bind him for the whole.

An OccupantAn Occupant, is a party interessed, that must be sum­moned, and he shall be bound by the Inquisition,But not the Reversi­oner. but the Decreé shall not bind him in the Reversion, but that he may avoid all without complaining, by Bill.

Tenant by Estoppel is a party interessed,Tenant by Estoppel, But not the true owner. but the cal­ling of him shall not bind the true owner, for any long­er time, then the Stoppel shall continue.

If Tenant in Tail be called, his Issue shall be bound,Tenant in Tail. Successor by Sum­mons of his Prede­cessor. so shall a Successor, by the summons of his Predeces­sor, until the Decrée be reversed by Bill before the Chancellor.

If there be Mortgagers,Mortgager and Mortgagee. and Mortgageés of Land given to a Charitable Use, it is the safest way to sum­mons both.

Lesseé for years,Leasee bound for his Term. upon condition to have the Fée to a Charitable Use, the Lesseé is summoned, he shall be bound for the term. But if he in the Reversion be summoned, the Lease shall be bound for the Feé-simple, and his State increasing, not for the term.

The Daughter and Heir hath such Lands by discent,Daughter and Heir by discent. and she is summoned, then a Son is born, and after the Decrée is made, the Son, though he be Heir ab initio, yet he shall be bound by the Decrée, because the Daugh­ter was the party interessed, summonable at the time.And Son born after.

Grantee of a Rever­sion before Attorn­ment, &c.If a Reversion given to a Charitable Use, be granted over, the Grantée, before Attornment, is no party inte­ressed to be called, yet the Reader made some doubt of this point.

Summons binds him, that is absent from the Inquiry.If the party be summoned, the Decrée shall bind him, though he were absent from the Inquiry.

Execuutor and Le­gatory.A Legacy is bequeathed to a Charitable Use, the Exe­cutor refuseth to assent to the Legacy, both the Executor and the Legatee ought to be summoned.

If a stock of Money be given, to be put out upon secu­rity,Obligor and Obligee. both the Obligor, and the Obligée must be called.

Ordinary of one in­testate, having Goods to a Charitable Use. A married Woman.He that hath Goods to a Charitable Use, dies intestate, the Ordinary ought to be summoned, unless he hath com­mitted the Administration.

A married Woman that is interessed, ought to be summoned, and her default shall bind her Husband.

He that hath the no­mination of an Alms-man.He which hath the nomination of the persons, upon whom the Alms ought to be imployed, is a party interes­sed to be called.

Persons receiving Alms, if the Charity be misimployed.The persons which ought to receive the Alms, are not persons interessed to be summoned. But if the Alms have béen imployed upon such as ought not to have re­ceived them, they are parties interessed, and ought to be called.

Every wrongful pos­sessor. Notice whatEvery wrongful Possessor is a party interessed to be summoned, and Charged. The calling is a notice given to the person of the party interessed, concerning the In­quiry to be taken before the Commissioners, at a certain time and place.

Notice to be given, and left, as Subpoe­nas in Chancery, and may be served any where.And this notice may be given as Subpoenas use to be served, by leaving them at the dwelling house of the par­ty, and notice may be given him in any County, or it may be given over-Seas.

The manner of no­tice. Four Commissioners make a Precept un­der their SealsThe manner of the notice must be thus, Four of the Commissioners, at the least, must make a Precept, under their Seals, commanding the party, to be before them at such a place, upon such a day, about such a business, &c. May be sent to the S [...]eriff. And this Precept may be sent to the Sheriff, to give notice thereof to the party.

If read in the Church where the party lives, it is good.If the Precept be read in the Church, where the par­ty is present, it is a sufficient notice and calling, if it be generally published in a Church, at Prayer, that all such as have interest in such Lands,If generally publish­ed. Notice of Adjourn­ment. shall be before the Commissioners, appoint another day of setling, and give him notice thereof, this is a sufficient calling.

Examination to be made, of notice be­fore they proceed to Inquisition, upon Oath, ought to be entred.It is good discretion in the Commissioners before they procéed to make Inquisition, to examine the Notice gi­ven, and the execution of their Precept, upon Affidavit, and to enter the same, to avoid a counter-averment.

A party interessed, not being summoned,Decree against one not summoned, but present at the Inqui­sition. was present at an Inquisition, and gave in evidence, the Decreé was made against him, and upon suggestion, after made by himself in the Chancery, that he was a party interessed, and not summoned; the Decrée was aboided, and a new Commission awarded, Viners Case.

The party interessed, is summoned for two purposes,Why parties interes­sed are to be sum­moned. To give in Evidence. To take his chal­lenge to the Jurors. A party not summon­able, may have his challenge. Challenge not allow­able, yet allowed by the Commissioners, doth not vitiate the Decree. But è contra, if they disallow what is al­lowable. Two Joynt-Tenants, first takes his chal­lenge, it shall bind his partner. Challenges by Sta­tute, vary from those of the Common-Law Those which must joyn in action, must joyn in challenge. Commissioners may discharge a Juror without challenge. Criminous things a principal challenge. Challenges by favour if denyed, yet the Decree is good. Juror non resident in the County, a good challenge. That he was sworn upon a former Jury. No challenge to the array is compulsory. If an alien chal­lenge, propter medie­tatem lingue, it is not allowable for the Statute of 27 Edw. 3. cap. 8. & 28. Edw. 3. 13. Are restrained to In­quests, to try Issues, between party and party. That challenge must be taken before the Ven. facias. Where no Ven. fac. no challenge lies. Summons to one Joynt-Tenant inte­ressed, shall bind both. 1. To give in Evidence. 2. To take his Challenge to the Iurors.

A party remotely interessed, may challenge a Iuror, though he be not summonable.

If the Commissioners allow a Challenge, which is not allowable, yet that will not vitiate their Decrée.

But if they disallow that, which is allowable, that will make their Decrée void.

If there be two Ioynt-Tenants, and one of them will take a Challenge, this shall be good, and bind his compani­on, though he would release it, and herein the Challen­ges upon this Statute, vary from the Rules of the Common-Law, for that saith, that those which must joyn in Action, must joyn in Challenge.

The Commissioners may, by Information, put out a Iuror without Challenge, by the party,

Criminosity is a principal Challenge.

Challenges by favour are tryable, but if such a Chal­lenge be denyed, yet the Challenge is good.

That the Iuror is not Inhabitant in the County, is a principal Challenge. So is it, that he was sworn upon a former Inquest.

No Challenge to the Array, is Compulsory.

If an Alien challenge the Iury, propter medietatem linque, because the one halfe of the Iury are not Aliens, according to the Statute 27 E. 3. Cap. 8. & 28 Ed. 3. 13 Ed. 1. This Challenge is not allowable, because that Statute is restrained to Inquests, taken to try is­sues, betweén party and party, and not to Inquisi [...]ions of this nature. Besides, that Challenge must be taken before the Venire facias awarded, and therefore where no Venire facias is to be awarded, there the Challenge can­not be taken.

Two Ioynt-Tenants, parties interessed, one of them only is summoned; if the other be present at the day, this shall be accounted a good Summons of them both.

If a party interessed be summoned to be of the Iury,A party interessed, summoned to be of the Jury, is no good Summons. this is no good Summons of him, as a party interessed, because he is summoned being a party interessed, that he may come provided with Counsel to give in Evidence.

Ʋpon the First Part of the Fourth Division.

What Commissioners may make a Decree. What Decree ac­cording to the Do­nors intent. What persons are bound by Decree. What Decree avoid­able, before or after execution.UPon this fourth Point, are considerable.

1. What Commissioners may make a Decreé according to their Commission, and warranted by this Statute.

2. What Decrée shall be said to be made, according to the intent of the Donor.

3. What persons shall be bound by such a Decreé.

4. What Decrée shall be avoidable before execution, and what after execution?

None but such Com­missioners as were upon the Inquiry, may make the De­cree.Those Commissioners that made the Inquiry, may make the Decrée, and none other, because the words of the Statute are in the Copulative (shall make inquiry, and upon such inquiry) and herein he compared this Case to a Bailment of a Prisoner; for if two Iustices, upon [Page 155] examination commit a person suspected to prison; If other two Iustices,If two Justices com­mit one suspected, & other two bail him, it is finable. which never heard of the examinati­on, will bayl him, this is more than they ought to do, and by the opinion of the Iustices, it is an indiscretion Finable; So if those Commissioners,The like Law in Commissioners, not present at the Inqui­ry. which were not present at the Inquiry, will take upon them to make a Decreé upon the Matter, this is a point beyond their au­thority.

A Bishop is named with other four Commissioners,If a Bishop inter­meddle in a Decree, not being present at the Inquiry, it is void. the other four inquire, and at the making of the Decreé, one of those four is absent, but the Bishop is present, and joyns, yet this Decreé is void, because the Bishop was not at the inquiry.

If there be 8 Commissioners,Four of eight Com­missioners may In­quire and Decree. and four make the Pre­cept, the other four may inquire, and decrée; for the De­crée is not depending on the Precept, but on the In­quiry.

Yet if threé only make the Precept,If three make the Precept, and four in­quire, all is void. though four In­quire and Decrée, yet all is void, because the Precept cannot be made by a less number than four, and then the ground failing, the building must fall.

If six make inquiry, whereof four only are without ex­ception,If four of six are without Exception, and make a Decree, it is good. those four must make the Decreé, otherwise it will be void.

If four Commissioners be present at part of the Evi­dence, and one of them departs,If one of four be pre­sent at part of the Evidence, and go out and come in again, at the giving of the Verdict, no Decree can be made. If four hear the Evi­dence, and adjourn, and another which was not thereat, joyn, he cannot med­dle, or make the De­cree good. If a Decree be re­turned by three, in the name of four, it is void. Averment against such a Retorn, is good. Things considered in the 2 Point. and comes again at the giving of the Verdict, they cannot make a Decrée, because the Inquiry was not perfect by all of them.

If four hear the Evidence, and adjourn the Iury unto another day, if any of them be absent, another which was not there at the first, cannot joyn with the rest, to make a good Decrée.

If thrée only hear the Evidence, and make a Decreé, and return it in the names of four, the Decrée is void, and an averrment may be taken against such a Return.

For the 2 Point, The Commissioners are restrained to thrée things, in the making of their Decrées and Or­ders.

1. That it tend and conduce to the imployment of the things given.1. That Commissi­oners, Decrees, and Orders, tend to the imployment of the things given. 2. That the imploy­ment be due. 3. That the imploy­ment vary not from the Use. Five things they may do. 1. They may esta­blish the property of a thing given to the Donee, or transfer it.

2. That the imployment be faithful and due.

3. That the imployment vary not from the use and intent, for which the thing was given.

These threé things being observed, the Commission­ers have power and authority to do five things more.

1. They may establish the property of the thing given, in the person to whom it was given, or they may trans­fer it from one person to another.

[Page 156] 2. They may ascer­tain the thing given in substance, cir­cumstances, and de­cencies.2. They may supply the defects of the Gifts, or imploy­ment in certainties, circumstances, and decencies.

3. They may ordain Conveyances, or Assurances to be made for the better imployment of the Vse;3. Ordain Convey­ances.

4. Add Decencies.4. They may add decencies in the imployment for the honor of the Donor.

5. Impose penalties. But cannot confirm Leases, nor release Debts, nor erect Corporations, nor remit Arrears, nor Lease at an under­value, either of Fine or Rent; nor Lease to their friends, nor ordain their own ser­vants to be poor, if able to maintain themselves.5. They may impose penalties for mis-imployments.

Commissioners, by their Decreés, cannot confirm Leases, nor release Debts, nor Stocks of Money, nor erect Corporations, nor remit Arrearages, nor decreé that the Land shall he Leased at an undervalue, either in regard of the Fine, or the Rent, neither that it shall be Leased to their friends for the apparent presumption of favour in undervalues; neither can they ordain, that their own servants shall be the poor, on whom the Cha­ritable Use shall be imployed, especially if they be able to maintain themselves.

They may appoint Collectors to gather Rent, to allow them wages.But if divers Rents be given to Charitable Uses, the Commissioners may appoint Collectors to gather in the money, and allow them wages. So if money be given to be put out upon security,Appoint a Scrivener to draw their Bonds, and allow them Pees. or Lands to be Leased, they may ap­point one to be the Scribener to write Obligations and Conveyances, and allow him Feés for his pains.

In the 11 year of King Hen. 6. a Gift was made to the intent, to find a Chaplain, ad Divina celebranda, until the Feoffor, or his Heirs, should procure a Foundation, &c. there was no imployment, until the third year of King Edw. 6. And therefore in the Quéens time, one Payne pur­chased the Land as a concealment. After a Commissioners being awarded upon this Statute, the Commissioners enquired and found the Gift, and thereupon agreéd the property,Property decreed to another, from a Grantee of the Q. To find a Chaplain, ad Divina celebranda no Use within this Statute. Chancellors decree to the first Use, good, Ad Divina celebrand, in a certain Church or Chappel, no Su­perstitious Use. Adjudged Pasch. 3 Jac. to another from Payne; But after, this Decrée was made void by the Lord Chancellor, because the use limited to find a Chaplain, ad Divina celebranda, was no Vse within the Statute, Inquirable, But the Chan­cellor by his Chancery Authority, may, and did decrée the Land to the first use. For a Gift, cuidam Capellano ad Di­vina celebranda, in a certain Church or Chappel, is no Superstitious Vse within the Statute, 1 Edw. 6. and so was the opinion of the Iustices in the Kings Bench, Term Paschae 3 Jac. and the reason is, because it is the general case of all Parsons in England; but if the Vse had beén within this Statute, the Commissioners might have transferred the property.

Commissioners may decree a release for assurances of Land. That Arrears shall be paid. Impose a penalty for non-payment.The Commissioners may decreé that one shall make a release for assurance of the Land; they may decrée that the party shall pay the Arrearages; and if they fail at the times, they shall pay a reasonable penalty.

If the Vse were limited for a Chaplain,By addition, That a Chaplain shall be a Preacher. they may decrée, by addition, that the Chaplain shall be a Preacher. So they may appoint the nomination of him,May nominate the person. to a man of Science, (as a Master of a Colledge, &c because such things concurr in decency and order, with the intent of the Founder, upon a Decrée made, Ann. 40 Eliz.

Concerning a Grammar-School of Northleeche, Five things observ­able upon 5 Jac. c. 7. which is now incorporated in Parliament, 5 Jac. cap. 7. he observ­ed five things.

1. That if there be a Grammar-School in a Town,1. If a Grammar-School be given up­on condition it be made a Corporation, though it never be a Corporation, the Profits must go to the School in being. and a man devise Land to certain persons, upon condi­tion that they shall procure that Grammar-School to be incorporated, and to find that Grammar-School in such case, though the Corporation be not procured, yet the Profits must be imployed upon the School in being.

2. Though the Heir enter for fault of imployment,2. An Heir chargea­ble with the Use, though he enter for default of imploy­ment. The Decree good. 3. A Grant to one that had a right, shall bind the Issue in Tail. yet he shall be charged with the Vse.

3. If they decrée the Land to the Heir, which hath en­tred, or might enter, by vertue of such condition, the De­crée is good, because he had colour to defeat the Vse by Entry; but because the Vse thereby seéms better esta­blished, the Decreé is good, as if Tenant in Tail, Grants a Rent unto one which had a right for a Release of his right, that Grant shall bind the Issue, in Tail, because it strengthens his possession.

4.4. Commissioners may increase a Gift. If a Founder appoint the use of the Land to be for a certain number of the poor, and that every one shall have 12 d. The Commissioners may appoint,But not the number of poor, appointed by the Founder. by way of increase, that every one shall have 20d. But if the num­ber of the Poor be limited in certain, by the Founder, the Commissioners cannot add any more poor to that num­ber, upon whom the Vse shall be imployed.

5. If a man Found a Freé-School,5. May nominate a School-master to be a man of Science. and appoints the no­mination of the Master to his Heir, the Commissioners may decrée it to be a man of Science, because it concurrs with the intent of the Founder, to have one of sufficiency.The Commissioners may appoint one to nominate the number of Poor, in case of the death of one ap­pointed by the Do­nor.

In the time of King R. the 2. one Adderbury, by License Founded an Alms-house in Dennington in Berk­shire, consisting of a certain number, appointing, that his Heirs should have the nomination of the Poor; and after,The authority of no­mination, cannot Esche [...] to the Lord. in the Reign of King H. 7. his Heir dyed without Heir; now although the Corporation was determined for want of a Nominator; and the Commissioners may not erect or revive a Corporation, yet they, upon Commission a­warded, did, and might decreé, who shall be a nominator; for the authority of nomination, could not Eschear to the Lord.Commissioners can­not alter the Sex, or Quality, Nation, Trade, or Professi­on, or transfer a Gift to another Sex, &c.

If the Donor limit the Imployment of the Profits to persons of one sex, Quality, Nation, Trade, or Profession, [Page 158] the Commissioners cannot decreé the imployment to per­sons of another Sex, Quality, Nation, Trade, or Pro­fession.

Nor from one Parish to another. Nor from prisoners of one, to those of another Goal.So if the imployment be appointed to be upon the poor of one parish, or the parishioners of one parish, or the prisoners of one prison; or the Scholars of one Gra­mar-School; in certain, the Commissioners power can­not decree it to the Poor of another parish, to the Prison­ers of another Goal, nor to the Scholars of another School, for that were contrary to the intent of the Do­nor.Nor a Use for divers purposes. As for the Poor, and mending the High­ways of one to ano­ther Parish. But the time and place of payment, and performance they may. So if the Vse be limited for the use of divers pur­poses, or for relief of the Poor, and amending High-ways, &c. The Commissioners (cannot interleasing one) de­creé the imployment of the whole upon the other only; but they may by their Donor, appoint the time when, or the place where it shall be paid.

A Chyrurgion or Physitian, may be added to maimed Soldiers, by Com­missioners, and Fees allowed them. They cannot trans­fer a Gift, for ease of Fifteens, to ease the parish of Bastards.If the Vse be limited for relief of many Soldiers, they may by Decreé, add a Chyrurgeon, or Physitian, and allow them Feés for curing such Soldiers.

But if the Vse be to ease a Parish of Fiftéens, the Commissioners by their Decrée cannot extend this to ease the Parish of Charges for Bastards born in the Pa­rish.

May order a Stock, to set the Poor on work, if the Use be limited to the Poor. If the Gift be for Mo­ney, Meat, or Appa­rel, Commissioners cannot alter it.Yet if it be for relief of Poor, the Commissioners may ordain, that it shall be a stock of Money to provide Hemp, Iron, &c. to set the poor in work upon.

If the Donor appoint the imployment to be in Mo­ney, Meat, or Apparel, the Commissioners cannot change the imployment,

Nor decree the for­feiture of an Obliga­tion, but may impose a Fine for non-pay­ment. They cannot commit to prison, but the Lord Chancellor, af­ter a Writ awarded, and an Attachement, may.The Commissioners cannot decrée the forfeiture of an Obligation to be taken, but they may impose a reasona­ble penalty for not paying at the day; they cannot, by their Decrée, commit any man to prison, nor decrée that he shall be prisoned; yet upon execution of their Decrée, after the Writ awarded, and an Attachment served, the Lord Chancellor may imprison the party for execution of the Decreé.

An Estate decreed void, is so in Estate and Interest, but the Lord Chancellor may restore the Estate.If the Commissioners decreé an Estate or Term to be void, they shall be void both in Estate and Interest; yet if the Lord Chancellor repeal that Decrée, the party shall be restored to his Estate or Interest.

They may order the building of a House of Correction, and 20 l. per Ann. by Deed inrolled. Or a Corporation in Esse, without danger of Mortmain. They cannot decree a second Lease, to commence before the expiration of the for­mer.The Commissioners may decreé, That a House of Cor­rection shall be erected by Deéd inrolled, allowing 20l. per ann. according to the Statute of 39 Eliz. cap. 5.

They may decrée Land to a Corporation in esse with­out danger of Mortmain.

If one that holds Land given to a Charitable Use, makes a Lease for years, to defraud the Vse, and after grants a Lease in Reversion, upon consideration &c. to another, to [Page 159] to begin after the expiration, determination,They cannot decree a second Lease, to commence before the expiration of the for­mer. or other boydance of the former; and the Commissioners decrée, that the former Leafe shall be void. Yet the second shall not begin, until the years be fully expired, because the Profits must be imployed to the Charitable Use, A Lease in Reversion shall not commence upon a conditional surrender. during the time of the former Lease. And this Case he com­pared with another, where a Lease in Reversion, as to commence upon the surrender of a former, it shall not commence upon conditional surrender.

They may decreé the payment of the mesne Profits,Nota. Mesne Profits and Arrearages decreed. and Arrearages, and may charge the pernors pro rata, Resol­ved by the Iudges,

If a man having Lands given to a Charitable Use, Pernors of Profits chargeable pro rata. Lands given in Mar­riage to one that hath no notice of the Use, is void. Marriage, no valua­ble consideration within this Act. give those in Marriage with his Daughter, to one that hath no notice of the Vse, yet the Commissioners may decrée this Gift in Marriage to be void, and dispose of it to the Charitable Use; for the advancement of his Daughter in Marriage, is no valuable consideration within this Act.

Vnto a general limitation of the Giver,To a general limita­tion, a particular li­mitation may be ad­ded by Commission­ers. the Commissi­oners, by their Decreés, may add particular limitations; as if the Donor limit the imployment be to marry poor Maids: The Commissioners may decreé, that such Maids which marry without the consent of their Parents, or within Age of consent; or which marry with their Ra­vishors, or which were gotten with Child before Marri­age, or marry without the Orders of our Church; shall have no part of that Money, and such a Decrée is good, because the additions are reasonable.

So when a sum in gross is given to marry poor Maids;They may apportion a sum, given in gross. they may, by their Decreé, set down how much every one that is married, shall have given with her.

So if a Gift be made to redéem Captives, they may de­creé that no part shall be imployed to redéem any Tray­tor, that is taken a prisoner, nor any enemy that is ta­ken prisoner, unless he be taken Captive by the Turk.

A stock of Money is given in deposito, They may limit a shorter time, than the Donors Gift ex­presseth, in case of necessity. to be expended in threé years, about the repairing of a Bridge, if there be apparent likelyhood, that the Bridge without imployment of the whole, in a shorter time will fall down;As in case of a decayed Bridge. they may decrée, that the whole sum may be bestowed in a shorter time.

But if a yearly Rent had beén limited to be paid year­ly, for such a purpose, though the cause were as urgent,But Rent payable for that purpose, at a day certain, they cannot. they cannot decrée that the Rent shall be paid before the day, for Rent is no duty, until the day of payment.

If a term to commence at a day to come,Commissioners may transfer a Term, in case of Fraud. be granted to a Charitable Use, and the Grantée endeavours to defraud the Vse; The Commissioners by their Decreé, may [Page 161] transfer that Term unto another,Endeavour of Fraud, is a mis-government and a forfeiture. from the defrauders, for his mis-government, although the time that it should commence, be not then come; for an endeavour to defraud, is a mis-government, and a forfeiture. As in Cases in the Common Law,As a Guardian his Wardship. If a Guardian endeavour to disinherit the Heir, he shall forfeit his wardship, 12 H. 3. Fitz-H. Guard 151. A Woman by accep­tance of an Estate from an abater for­feits her Dower. So if a Woman take a Feoffment of him that abates after the death of her Husband, she hath forfeited her Dower, because by accepting such an Estate from such a person, she endeavoured to disinherit the Heir, 11 E. 2. Fitz H. Dower 156.

Goods given for a House of Correction cannot be otherwise imployed.If Goods be given for a House of Correction, they can­not decrée the Imployment out of the House.

For the Third Point, The Rule is,

Lord by Escheats shall be bound, for which see here a lit­tle after in this page, with this mark. ☞ Such as have Titles paramount, are not bound by Decree, though summon'd and at the Inquiry. But only such as the Donor, by his own Act hath bound. An Heir entring for Condition broken, is bound by Decree. But Tenant in Tail enters for Condition broken for a Chari­table Use is not bound. But he take another wife, and have issue, and this issue enter, he shall be bound till the first issue reco­ver.THat those which have Rights, Titles, Estates, and Interest paramount, the Donor shall not be bound by any Decreé, though they were summoned, and present at the Inquiry: But all those whom the Donor might have bound by his own Act, or Conveyance, shall be bound by the Decreé of the Commissioners.

If Tenant in Fée-simple make a Feoffment upon con­dition, to perform a Charitable Use, and his Heirs enter for the Condition broken, the Heir shall be bound by De­creé: But if Tenant in Tail, make a Gift, upon conditi­on to perform a Charitable Use, and his Heir enter for Condition broken, he shall not be bound by their Decreé, because the Donor could not bind him. Yet,

If Tenant in Tail have issue, and takes another Wife, and then makes a discontinuance, and takes back an E­state in special Tail to the Heirs of their two bodies, and then makes a Gift to perform a Charitable Use; if this Heir enter, he shall be bound by Decreé, until the first issue recover.

☞ Lord by Escheat is bound.If there be Lord and Tenant, and the Tenant make a Gift to a Charitable Use, and dye without Heir, the Lord which hath the Land by Escheat, shall be bound by their Decreé to perform the Vses.

If Lessor enter for a forfeiture, he is bound to the Cha. Use.If a Lease be made to a Charitable Use, and the Leasée commits a forfeiture by Feoffment, &c. If the Lessor enter for the forfeiture, he shall be bound by Decreé, during the years to come of that Lease.

Nota. Charitable Use not to be bound by Estop­pel. ☞If a man dis-seise the Feoffeé to a Charitable Use, and purchase a collateral Warranty, which descends upon the [Page 161] Feoffée, yet the Dis-seisor shall be bound by the Decrée of the Commissioners, because the collateral Warranty, is but a Bond by Estoppel, and a Charitable Use shall ne­ver be bound by any Estoppel.

If a Tenant for Land, given to a Charitable Use, Nota, A Fine levied, and five years pass, yet the Tenant is bound. A Cha. Use is no in­terest in the Lands. This Statute made after those which bind Rights. le­vy a Fine, and five years pass, yet the Decrée shall bind the Tenants of the Land, because the Vse is no Inte­rest in the Lands, and this Statute of Vses was made af­ter these Statutes, which bind Rights.

If the Heir of the Dis-seisor be in by descent of Lands given to a Charitable Use, Nota. An Heir of a Dissci­sor, in by descent, is bound to a Cha. Use. No laches destroy a Cha. Use. A Con­veyance upon good consideration, with­out Fraud, and no notice, may. yet he shall be bound by the Decreé, for no laches of Entry shall never destroy a Cha­ritable Use, nor any thing bar it, but a Conveyance to one upon good consideration, and without fraud or notice.

Neither is a Charitable Use bound to the times expres­sed in the Statute of Limitations,Nota. Statute of Limitations doth not extend to this. made 32 H. 8. cap. 2. nor to that of 21 Jac.

If there be Tenant in Tail, and the Remainder in Tail be limited over to a Charitable Use, Nota. A Recovery destroys the Remainder, whereupon a Cha. Use dependeth. But if he in: Remain­der, be a party to the Recovery, the Law is otherwise. and the Te­nant in Tail suffer a Recovery with a double voucher, and the first Tenant dye without issue, the Commissioners cannot make any decree concerning that Vse; because, by the Recovery, the Remainder, whereupon the Vse de­pended, was destroyed. But if he, in the Remainder, had been party to the Recovery, the Vse had continued, and should have been decreeable.

If a Bankrupt be a Feoffee,Nota. Statute of Bankrupts subject to this. or Donee to a Charitable Use, and after upon Commission his Lands are sold to his creditors, yet the creditors shall be bound by a Decree of Commissioners upon this Statute for the Vse.

So if an Accomptant to the King, be a Feoffee,Nota. The like Law, in the Kings Accomptant, to the King. the King shall be bound by the Decrée for a Charitable Use.

A Commission for Sewers,Nota. Commission of Sew­ers, is preferr'd be­fore this Statute. is to be preferred before a Commission upon Statute of Charitable Use, if they concur not in jurisdiction, as if the Commissioners for Sewers decreé that Land, which was given for repair of High-ways, shall be sold, &c. But both may De­cree in repair of Seabanks, The Commissioners upon this Statute cannot make a Decreé for the Chari­table Use, because they vary in point of jurisdiction, and imployment of the Vse. But if the Land decreed by Commissioners, for Sewers, were given for the repair of Sea-banks; the Commissioners upon this Statute may decrée as well as they, because they agreé in the im­ployment.

The Feoffeé to a Vse, acknowledges a Statute,Nota. Lands extended upon a Statute, subject to this, notwithstand­ing an Extent. and the Statute is extended to these Lands, and other; the Commissioners decreé, that the extent, as for the Lands given to a Charitable Use, shall be void; It seéms the party shall be driven to a new extent.

An Occupant is bound by this Sta­tute.An Occupant shall be bound by the Decrée of the Com­missioners.

Nota. The King bound by this Statute.If a Feoffée to a Charitable Use, convey the Land to one for life, the Remainder to the King, the King shall be bound by the Decrée of the Commissioners, because the Vse was limited before the Titles of the King.

Nota. If the Kings Title commences with the Use, the party griev­ed must petition.But where the Title of the King commences with the Vse, there the party grieved must sue by Petition; as where Lands are given for life, the remainder to the King to a Charitable Use.

Nota. Lord by Escheats, bound for the Te­nancy, not for his services.Lands given to a Cha. Use, escheats to the Lord, the Lord shall be bound by Decrée for the Tenancy, not for his services.

Nota. Copyhold cannot be transferred by Com­missioners. But to admittance of a Tenant, the Lord is bound.They cannot by Decreé, transfer the property of a Co­py hold.

But they may decreé, that the Lord shall admit such an one for Tenant, and the Lord shall be bound by their Decrée.

Nota. Bargainee by Feoff­ment, with power of Revocation, is not bound, though he had notice. The bargain a­mounts to a Revo­cation. If his Heir sell to an­other, with notice, the Law is other­wise.If a Feoffment be made to a Vse, with a power of Re­vocation at the Will of himself and his Heirs, and the Feoffor sells the Land to another, the Bargainée cannot be bound by Decreé, though he had notice of the Vse; be­cause if the Feoffor had made a Revocation, the Vse had beén destroyed, and the bargain amounts unto a Revoca­tion. But if his Heir sell it unto another, which had no­tice of the Vse, that Bargainée shall be bound by the De­crée, because if the Heir had reboked, he should have held the Land lyable to the Vse.

Nota. An obligation to a Recusant for a Cha. Use, is subject to this Law.If an obligation be made unto a Recusant, convict for security of money given to a Charitable Use; although the obligation cannot be put in suit in the name of the Recusant, to whom it was made, because he is a person Excommunicate, and so disabled to sue any Action, yet the Commissioners may decree the payment of the Money, and it shall bind the party to pay the principal,As to the Principal. but not the forfeiture.

Nota.A man devises that his Executors shall sell his Land, and that the Money which shall be received, shall be im­ployed to a Charitable Use; Executors may be forced to sell Land, gi­ven for a Cha. Use if the Executors refuse to sell it, th [...] Commissioners, by Decree, may bind them to sell it, and upon a Writ of Execution out of the Chancery upon the Decree,The Heir also shall be bound by the Commissioners de­cree of sale. they shall be compelled to sell it; and it seems in that case, if the Commissioners decree, that the Heir shall sell that Land, the Heir shall be bound by the De­creé, because the intent of the Devisor was, that the Land should be sold to a Charitable Use.

Nota.One Symons, an Alderman of Winchester, sold certain Land to Sir Tho. Flemming, now Lord Chief Iustice, then Recorder of that Town, and this was upon Confidence [Page 163] to perform a Charitable Use, Lands given upon Confidence, to per­form a Trust, though the Deed ne­ver was inrolled. which the said Symons de­clared by his last Will; that Sir Tho. Fleming should perform the bargain, was never inrolled, and yet the Lord Chancellor decreed,Decreed in Chancery to the Cha. Use. before this Statute was made. that the Heir should sell the Land, to be disposed, according to the limitation of the Vse; and this Decree was made the 24 of Q. Elisabeth, before the Statute of Caritable Uses, Upon ordinary judi­cial proceedings in Chancery. and this Decree was made upon ordinary and judicial Equity in the Chan­cery; and therefore it séems the Commissioners upon this Statute, may decree as much in the like case.

If a Reversion be granted to a Charitable Use, Nota. Particular Tenant in Reversion, bound to Attorn. the par­ticular Tenant shall be bound to attorn by the Decree of the Commisioners; and he said, there are presidents in the Chancery, where the Lord Chancellor hath decreed and compelled the Tenant to attorn.

Sir Tho. Bromley decreed,Nota. Ter-Tenant compel­led to give Seisin of a a Rent-seek. and compelled the Terr-Tenant, to give Seisin of a Rent-seck, to the intent the party might bring an Assise.

One having a Lease for many years, at an easy Rent,A Lessee for many years, at an easy Rent, makes a Lease for fewer years at a Rack-Rent, and then grants his Reversion. The Tenant is com­pellable to Attorn. makes an under Lease for less years, upon a rack-Rent, and then grants his Reversion; the Tenant refuses to Attorn, it may be decreed that he shall; Mallories Case depending.

If Goods be devised to a Charitable Use, Nota. Executors compella­ble to deliver Goods given to a Cha. Use. the Commis­sioners, by Decree, may bind and compell the Executors to deliver the Goods.

Upon the Fourth Point.

IF three Commissioners only make the Precept,Nota. If three Commissi­oners only make a Decree. If without Inquisiti­on, they are avoid­able without Bill. this may be shewed in the Court, and the Decree avoid­ed without Bill. If a Decree be made without Inquisi­tion, it is avoidable by suggestion without a Bill.

But if a Decreé be made without calling the parties,Nota. If a Decree be made without calling the parties, not reliev­able but by Bill in Chancery. If the party be deny­ed his lawful chal­lenge, not relievable, but by Bill in Chan­cery. or if the party be denyed his lawful challenge, such a decree cannot be avoided, but at the suit of the party, by shewing his Title, upon Bill, as a party grieved; be­cause the Chancellor is to judge of Titles.

If the Commissioners, by their Decree, mis-proporti­on Allowances, or Decree Conveyances to be made un­to others,Nota. If after judicial pro­ceedings upon the Title, Commissioners decree Conveyances, or mis-proportion al­lowances. The Decree must first be executed, be­fore any relief can be had by Bill or Complaint. after precedent judicial proceedings upon the Title, the Decree must first be executed, before any as a party grieved, shall be admitted as a party grieved, to avoid the Decree by Bill of complaint.

Upon the Second Part of the Fourth Division.

Nota. Property transfer'd by Decree, may be entred without Writ of Execution. Entry by a Reversi­oner upon a Lease decreed void, is good without Writ. A Release decreed void, not pleadable in Barr. Tenant may retain his Rent.IF a Decreé be made to transfer property from one person to another, the party to whom it is decréed, may Enter, or take it, without a Writ of Execution.

So if a Lease for years, be decréed to be void, he in the Reversion may enter without a Writ. If a Release be decréed to be void, it cannot be pleaded in Law. If the Decrée discharge a Tenant for Rent, the party may plead the decreé in Barr of an Action brought for the Rent: and the Tenant shall execute the Decrée by way of retain­ing.Voluntary delivery of [...]idence decreed, is good without Writ. If the Commissioners decrée, that Evidence shall be delivered, the voluntary deliverance of them is good, without Writ; but no voluntary performance, is a good performance,Without Certificate of Commissioners, no voluntary perform­ance of a Decree, is good. or execution of the Decreé, without certi­ficate by the Commissioners, because no Decreé can be made warranted, by this Statute, but such as may be censured by the Lord. Chancellor; unless it be certified, and therefore no Decreé good by this Statute,No Decree good up­on this Statute, with­out a Certificate. without a Certificate.

Lord Chancellors Power. Execution upon a Decree awarded, or staid by Lord Chancellor.Concerning the awarding, or staying Execution by the Lord Chancellor, touching Decrees made by the Com­missioners, he considered thrée Points, upon two Branch­es of the Stature.

What to be awarded.1. What Decreé shall be so made, that the Lord Chancellor ought to award, or stay execution there­upon.

What to be certified.2. What Decree shall be said to be so certified, as the Lord Chancellor ought thereupon to stay, or award exe­cution.

What manner of ex­ecution well made and certified.3. What manner of Execution the Lord Chancellor may award, for the execution of their Decrees, well made and certified,

Nota. If one of four be disabled; If of any thing out of their Commission. Or against the Com­mon Law, or Ordi­nances of the Church Repugnant to the Donors intent, are good cause [...] [...]o stay execution. For the First. If four Commissioners make a Decree, and one of them was a person disabled; or if they make a Decree of any thing out of their Commission, or de­cree any thing against the Common Law, or Statutes, or Ordinances of the Church, or varying, or repugnant to the intent of the Founders or Donors, &c. And these and the like be shewed unto the Chancellor, because it ap­pears, that the Decreé was not well made, the Chancel­lor ought to stay execution.Record of a Certifi­cate, may be averr'd by word of mouth, and stay execution. But such as are not upon Record, must be in Writing.

All these things which appear upon the Record of Certificate, may be alledged by word, to stay execution. But such as are not apparent upon the Record, must be [Page 165] suggested and shewed in Writing. And wheresoever,Stay of Execution cannot be, but upon proofs of Allegations first made. upon suggestion, the Chancellor shall stay execution, he ought presently to put the party, at whose suit it is staid, to make proof of the truth of his allegations.

For the Second Point.

IF four Commissioners make the Decree,Nota. 2 Points. Four make a Decree, and four the Certifi­cate, yet the Decree ought to be execu­ted. The Certificate is but a ceremony. If a Commissioner disabled, make a De­cree, though desired; The Lord Chancellor ought not to execute the Decree. If a Recusant Com­missioner conforms after Certify, yet the Decree is not to be executed. and other four make the Certificate, yet the Lord Chancellor ought to execute the Decree, because the Certificate is but a ceremony. If four Commissioners, whereof one is a party interessed, or otherwise disabled to be a Commissi­oner, to make a Certificate, although the Commissioner which made the Decree, desired him that was a person disabled, to make a Certificate, yet this Decree is not to be executed by the Lord Chancellor.

If one that was a Recusant at the time of the Com­mission awarded, and after conforms himselfe, make a certificate of the Decree; the Decree ought not to be ex­ecuted, because he was no lawful Commissioner at the first.

If a Dommissioner hath put his Hand and Seal to the Certificate, and dye before it be brought into Court,If a Commissioner certify, and dye be­fore it be brought in­to Court, the Decree ought to be execu­ted. If all but three dye after a Decree, and before Certificate, yet the Decree is not executable, for three cannot certify. If Certificate be not made in time. Yet if voluntarily, or upon Certiorari, tis good. Not certifying, is but a contempt, and Fine­able, the time is but a circumstance, and no condition by this Statute, to void a Decree. If all the Commissi­oners dye, and a Cer­tierari be directed, the Executor of the survivor, returns the Certificate, and good, and the De­cree ought to be exe­cuted. Seals are Essential to a Decree, and to a Certificate. yet the Decree ought to be executed.

If after the Decree made, and before Certificate, all the mommissioners dye but three, those three cannot cer­tify, if they do, the Decree is not executable.

If the Certificate be not made within the time limited by the Commission, yet if voluntarily, or upon Certio­rari, the Commissioners certify afterwards, the Decrée is good, and ought to be executed; because the not certi­fying was but a contempt, and finable, and the time of certifying is but a circumstance, added to the Certifi­cate, and no Condition limited by the Statute, to make the Decrée void.

If after the Commissioners have put their Seals to the Certificate, they all dye, and a Certiorari be directed to Executors of the surviving Commissioners, which return the Certificate; the Decrée is so certified, that it ought to be executed.

It is of necessity requisite, that both the Decrée and Certificate be made, and certified under the Hands and Seals of the Commissioners, for their Seals are essen­tial to their Decrées and Certificates.

Every Certificate must be made in a several Parch­ment, under the Seals of four Commissioners,Certificates must be made in several, by four Commissioners, and not indorsed up- the back of the Com­mission. Commissioners may make a return, and keep the Commission it self. and not [Page 166] upon the back of the Commission, by way of Indorse­ment; for the Commissioners may make return of the Commission, and yet keep the Commission it self in their own custody.

Concerning the Third Point. The Lord Chancellors power of Execution.

Concerning the man­ner of execution of a Decree. Referred to the Lord Chancellor, and ought to be accord­ing to the usual course of Justice and Equity. The usual course is to award a Writ of Execution upon the Statute, and, upon that, Attachement and Imprisonment. Lord Chancellor may award an Haberi fa­cias seisinam. And a Decree to keep possession. And generally, the Chancellor doth a­ward an Haberi facias seisinem. If for an Estate to be executed, then a Writ of Execution, and At­tachment, Imprison­ment. If for payment of Debts, an Attach­ment, Imprisonment, and Fine, or an ele­git, or fieri sac. These three manners are warrantable. Lands and Goods lia­ble to Execution, are only such as are liable at the making of the Decree, and not at the Teste of the Commission. Nota. Bankrupts Lands gi­ven to a Cha. Use, sold to one that had no notice, may be decreed to that Use.THe manner of execution is deferred to the Lord Chancellor, and yet his discretion should be limit­ed and confined in awarding process of Execution, unto the usual course of Iustice, in Courts of Iustice and Equity. But the usual manner is to award a Writ of Execution, framed by advice, for that purpose, upon the Statute; and after that, an Attachment, and then Im­prisonment of the party, until performance; but he may at his pleasure award an Habere facias seisinam, if the De­cree concerned the disposing of Land: and thereupon may also Grant a Commission to keep the party in pos­session. And for the most part, the Chancelor useth, 1. If the Decree concern the realty, to award the Writ of Habere facias seisinam. 2. If for an Estate to be executed, then a Writ of Execution, an Attachment, Imprison­ment and Fine. 3. If it be concerning the payment of a debt, &c. then either an Attachment, Imprisonment and Fine, or an Elegit, or a Fieri facias, and these three manners and sorts of Executions are usual and warrantable.

Decrees upon this Statute, shall make those Lands and Goods only lyable to execution, which the party bound by the Decree, had at the time of the making of the Decree, not at the day of the Teste of the Commis­sion.

If the Commissioners upon the Statute of Bank­rupts, sell the Land which the Bankrupt had to a Chari­table Use, and that to one that had not notice of the Vse, yet the Commissioners, upon this Statute, may decree for so much as is given to the Vse.

Nota. Money in a Bank­rupts hands to that use, shall be liable as a Creditor, and be shar'd accord­ingly.If Money given to a Charitable Use, comes to the hands of one that becomes Bankrupt, the Charitable Use shall come in but like a Creditor, and share alike as other Creditors; otherwise of Land.

Nota. If a Recusant Con­vict, give a Cha. Use, and after the offence committed, it binds the King, as to the Cha. Use.If a Recusant, after the offence committed, give Lands to a Cha. Use, and after be convicted, yet a Decree shall bind the Land for a Charitable Use, because the forfei­ture is intended, not for any advancement of the Reve­nue [Page 167] of the Crown, but for a punishment of the Offen­der.

If an Accomptant give Lands to an Vse,Nota. If an Accomptant give Lands, and be found in arrear, no Decree, shall bind the King. A Cha. Use must give place to the Treasu­re of the Crown. The Goods of the Husband shall be bound for a Cha. Use given to the wife be­fore Coverture. and after be found in Arrearages, no Decree shall bind the King, for the Vse in this case, because such Land was intended, part of the Kings Revenue; and a Charitable Use must give place to the Treasure of the Crown.

If a man marry a Woman that hath Goods given to a Charitable Use, the Goods of the Husband shall be bound to Execution, but neither his Body nor his Lands.

If a Decree be made against Executors,Nota. Wasts of a Cha. Use by Executors, are chargeable upon their own Goods, and so are their Lands. which they had at the making of the Decree. If the Decree be made only upon con­tempt for not pay­ment, the Lands are excused to pay certain Moneys to a Charitable Use, in regard they had wasted the Assetts that they had, and was payable to the Charita­ble Use; In this case, Execution may be awarded upon their own Goods, and upon all their Land, which they had at the time the Decree was made; But if the De­cree was not made upon the Devastment, but for contempt, or not payment, the Execution shall not be extended to their Lands.A Scire f [...]cias must be first awarded, before any Decree can be executed against an Ancestor, or a Te­stator.

A Decree made against the Ancestors, or the Testator, shall not be executed against the Heir, or Executor, with a Scire facias, first awarded.

Upon the Third Branch of the Fourth Division.

THere is given to the Lord Chancellor, a Directory declaratory, and additionary,What compulsory power is in the Lord Chancellor. and compulsory power by this Statute, which he may exercise, upon complaint by a party grieved, that the Commissioners have not pursued their authority.Who may justly complain. Whosoever hath b [...] ­num [...]missum, or ma­lorum Commissum by the Decree. Every one interessed in property, to his own Use. Any one that hath prejudice by the De­cree in Law or Equi­ty.

A party grieved is, whosoever hath bonum omissum, or malorum commissum by the Decree. Whosoever is in­teressed, and hath a property and ownership of Goods and Lands to his own use, whosoever by the Decreé hath prejudice, either in Law or Equity, is pars gravata, and may complain by Bill.

But where the prejudice is common or general, there every man may complain as a amicus curiae, Nota. Generally. Every one where the preju­dice is general, may complain as Amicus curiae. As for reparation of High-ways, &c. not as a par­ty grieved, as where Lands given to repair Bridges or High-ways, which are publick easements, there any man may complain, if the Decrée limit the Vse to any o­ther purpose.

If a Stock be given to be lent out to poor Tradesmen of a Town, and this be decreéd only to Clothiers;If a stock be given to poor Tradesmen in general, be de­creed only to Clo­thiers, all other Tradesmen are par [...] gravatae. the o­ther Tradesmen are pars gravata. So if to Artisans and it be decreed only to Haberdashers, &c. the other are pars gravata.

A Cha. Use charged upon a Dower, the Wife, post mortem, is parsgravata. Nota. So of Land descended to a Daughter, and a Son born after, the Son is pars gravata. Nota. The Lessor of a ter­mor upon condition, &c. is not pars gra­vata.If a Decrée be made against a Husband, of Land, whereof the Wife was Dowable; the Wife, after the death of her Husband, is a party grieved. So if a De­cree he made against a Daughter for Land descended, the Son that is born after, is a party grieved.

If a Termer upon a Condition, that he shall not alien, without the consent of his Lessor, devise that his Execu­tors shall sell it for a Charitable Use; the Commissioners decree, that the Executors shall sell it, the Leasor is not pars gravata.

Nota. Title paramount this Decree, is gravata persona. Feoffee, or Assignee, after Inquisition, is not. Every Creditor after a Decree against a Bankrupt, at the time for Goods, is pars gravata. The Heir, Executor, or Administrator of an Ancestor, Testa­tor, or Intestate, is pars gravata, So is every one that claims by Estoppal, during, the time of the Estop­pel.Every one which hath a Title, paramount the Decree, is a party grieved: but the Feoffee or Assignee, after In­quisition, is no party grieved.

If a Decree is made against one that is Bankrupt, at the time for Goods, every Creditor, is pars gravata, but not for Lands.

If a Decree be made against an Ancestor, a Testator, or one that dies intestate, the Heir, the Executor, or Ad­ministrator, is a party grieved; So is every one that claime, by Estoppel, during the time of the Estoppel.

Upon the last Part of the fourth Division.

The Chancellors pre­dominant Power. If the intent of the Donor was not law­ful, nor the Gift a good ground, though the Decree concurr with the Donors in­tent, yet such a De­cree cannot be alter­ed, but must be nul­led.IN reducing the Decree to the intent of the Donor, the Chancellor hath a predominant Power; but if the intent of the Donor was not lawful, or the Gift had no good ground, though the Decree concurr with the intent of the Donor, yet such a Decrée cannot be altered, but must be annulled; And therefore,

If a man devise that his Heir, as often as such a Church shall become void,Nota. Where the Use de­pend upon Symony, the Decree must be nulled. shall present a poor Scholar of such a Colledge; and that the Clark presented, shall have a certain sum of Money to the repair of High-ways; and the Commissioners decrée accordingly: this De­creé is to be annulled, and made void, although it be ac­cording to the intent of the Donor, because the Vse for High-ways, depends upon Symony.

Nota. The Kings Grant of the penalties of Sta­tutes, to a Cha. Use, and the Commission­ers decree accord­ingly, is not war­rantable. So if an Imposition be granted, for bringing Corn to a Market.If the King grant the penalty of divers Statutes to a man, to a Charitable Use, and the Commissioners de­creé accordingly, yet the Decrée must be annulled, not altered, because the Original was not warrantable.

So if an Imposition be granted, that every one that brings so much Corn to the Marker, shall pay 2 d. to­wards the repair of such a Haven, though it be decreed accordingly; yet the Decrées must be annulled, not alter­ed, because the Imposition was not lawful.

But if the Grant had beén,But if for exportati­on it is good. that every one which shall transport so much Corn over Sea, shall pay so much for the repair of the Haven; a Decree made accordingly, had beén good, and executable, because the Grant was law­ful.

If the Commissioners decree,Nota. Lord Chancellor may limit a longer or a shorter time, than is appointed by the Donor. that the arrearages of the Profits, given to a Charitable Use, shall he paid in two years; the Lord Chancellor may alter the Decreé, in the point of time, and limit a longer or shorter day of payment.

If the Gift be general, for the maintaince of a School;A general to a par­ticular Use. and the Decree be made for a Grammar-School, the Lord Chancellor may alter the Decreé, and appoint it for a Writing-School.

If the Donor give Money to be lent to poor Trades­men, and the Decreé limits the time,Money lent, to be paid sooner or latter. how long they shall have it, yet the Lord Chancellor may limit a longer or shorter time of the Loan.

But if the Gift be given to make a Causeway in a place certain, and it is decréed accordingly,But a place certain, his Lordship cannot alter, as a Cause­way. the Lord Chancellor cannot alter the place; but he may change the imployment, from a Causeway, to make a Bridge, if his discretion think fittest, because the passage was the Principal; which being observed, the conveniency, whe­ther a Causeway or a Bridge were fittest, is in the Chancellors discretion to appoint.

If the Donor ordain,Nota. Nor the kind of any thing given. that the relief be given in Bread, and it be decreéd accordingly, the Lord Chancel­lor cannot alter the relief to be given in Money, for the kind should be charged.Nor from Christmas to any other Feast. So if the relief be appointed to be given at Christmas, the decreé according, cannot be altered to another Feast, because the honor of the par­ticular Feast, seéms essential to the Gift.Nor from St. Pauls to Westminster. So if the Gift and Decrée be, for such Poor, as shall come and hear a Sermon at St. Pauls, it cannot be altered to West­minster, for the place is material.

If the Decree ordain,The form of an Assu­rance, his Lordship may alter. that an assurance shall be made by Feoffment, the Lord Chancellor may alter the form, and limit the assurance to be made by Fine.

Nota. He may charge the Executor instead of the Heir. Et è converso, or may di­vide the charge.If the Decree charge the Heir, the Lord Chancellor may change it, and lay it upon the Executor, Et è con­verso, for both are chargeable, if they have Assetts; or he may divide the charge at his pleasure.

Nota. The Churchwardens instead of the Over­seers, of the Poor may be charged.So if the Decree charge the Overseers for the Poor, he may change it, and lay it upon the Churchwardens, Et è converso, or may divide it between them at his plea­sure.

Nota. But a Gift general ad Pios usus, is not alterable.But if a Gift he made general, ad pios usus, and the Decree limit the imployment for repair of High-ways, &c. [Page 170] this Decree is not alterable to another Vse,Nor a General redu­ced to a Certainty. Nota. because the Commissioners have lawfully first reduced, the generalty to a certainty.

If a Gift be made to such a Charitable Use, as J. S. shall nominate, though J.S. do nominate, and the Commissi­oners decree, yet the Decree is not alterable, but must he annulled.A Charity given to the Use of J. S. shall nominate, is not good, but must be annulled.

Nota. But if to such a Use as the Commissioners shall appoint in Cer­tain, it is good.But if the Gift had bin to such a Charitable Use, as the Commissioners upon this Statute, should assign, and the Commissioners by Decree, had appointed one, in cer­tain, this Decree were good, and not alterable by the Chancellor, because they first reduced the Gift to a cer­tainty.

Ʋpon the Fifth Division.

THe Proviso of exempting Land,Proviso of exempting Lands, must be taken strictly, and not by Equity. must be constru­ed strictly, and not be taken by Equity, unless in very special cases, because the body of the Statute is a beneficial Law; and therefore,

The Proviso must be taken litterallyLiterally. in thrée Points.Nota.

1. It shall extend only to Corporations in esse, 1. To Corporations in Esse. at the time of making the Statute, and not to be stretched to such as shall be made after.

2. It shall not be extended to Lands,2. Not to Lands gi­ven after the Statute. &c. which are gi­ven after the making of the Statute, though the Corpora­tion, &c. were in being, at the time that the Act was made.

3. It shall not extend to Goods and Chattels, given to Cities, &c. 3. Not to Goods and Chattels, given to Cities, &c. because Lands only are mentioned in the Proviso.Nota.

Yet by Equity, it shall be extended in two cases.But in two Cases it may by Equity.

1. If there be inferior or petty Corporations,1. To petty and infe­rior Corporations. as Com­panies of Mercers, Grocers, &c. in a greater Corporati­on, as the City of London, it shall be extended, by Equi­ty, to such Companies or Corporations.

2. Though Colledges be only mentioned,2. To the whole University, though Colledges be only mentioned. yet the whole Vniversity, which is a body politick, shall be taken, by Equity, to be within the Proviso.

Three things requi­site to bring any thing within the Proviso of this Act. Nota.To bring a Gift within the Proviso, threé things are requisite.

1. That the Gift be made to a body Poli­tique.1. That the Gift he made to a body Politick; not to a part, or principal Member, as to the Dean and Chapter, not to the Dean alone.

2. That the imploy­ment be to a Corpo­ration.2. Not only the Gift, but the Imployment also must be limited to a Corporation, yet if the Gift be to the Chief, or grand Corporation, and the imployment limited into an inferior Corporation within it, it shall be exempted.

3. The Corporati­ons, &c. must have power to execute.3. The Corporations, Overseérs, or Governors must be able, and have power to execute and imploy the use, in as ample manner, as the Commissioners may do; other­wise, if they cannot cause the use to be imployed, the Com­missioners may intermeddle,Otherwise the Com­missioners may inter­meddle. and the Proviso shall not save them.

A Gift to a Colledge, to pay 20 l. per Ann. to a Parson, for Cha. Uses, is not within the Proviso.A Gift was made unto a Colledge, to pay 20 l. unto a Parson, to distribute amongst the poor of his Parish; this Vse was not within the Proviso, because the Col­ledge hath no power to compell the Parson, to distribute the Money.But if to a City, to be imployed by the Mayor, it is other­wise. But if the Gift be to a City, to be imployed by the Mayor, it is exempted, because he is part of the Corporation; so if the Gift be to one Corporation, as to a Colledge, and the imployment of the Vse, limited to another Corporation,If to one Corporati­on, and the im­ployment to another Corporation, or City, it is within the Pro­viso, Nota. as a Town or City; this is with­in the Proviso, because, both the property and the imploy­ment are appointed to a Corporation, though several, and shall not amount to as much, as if both were one.

A Corporation for part, Commissioners may deal for the whole. Majus dignum trahit ad se minus dignum. Increase of Relief, is exempt from the Pro­viso.If the Corporation can deal but for part, the Commis­sioners shall have jurisdiction for the whole, Majus dignum trahit ad se minus dignum. If a Gift he made at this day to an Hospital, which hath a Governor appoint­ed by the Founder, and the Gift be for increase of relief of the poor; this increase is exempted, as well as the foundation, from the jurisdiction of the Commissioners.

An Hospital in repu­tation, is exempt.An Hospital in reputation is exempt, as well as if it were a Corporation, if it have a Governor appointed by the Founder;If it have a Gover­nor appointed, &c. and therefore a Gift to the poor Knights of Windsor, for increase of their allowance, is exempt, be­cause they have the Dean and Cannons,As Dean and Chapter of Windsor. for they are Supervisors by their Founder; and although they are provided otherwise to live, yet because they live upon Alms, a Gift made unto them, is within the Charitable Vses of this Statute.

Ʋpon the First Part of the Sixth Division.

IF the first Purchasor gave valuable consideration,Notice. The first Purchasor, though upon valua­ble consideration, having notice, And all in Privity of the Estate under him, are bound by Com­missioners Decree. Otherwise it is, if the first Purchasor had no notice. and yet hath notice of the Vse; All that claim in privity under his Estate and Title, whether they have notice or not, shall be bound by the decrées of the Commission­ers. But,

If the first Purchasor for valuable consideration, had no notice of the Vse: none of those which come after him in privity of Estate or Bloud, shall be impeached by the decreés of the Commissioners, although they have no­tice of the Vse; because the first Purchasor, from whom they decrée their Title, was exempted from their autho­thority.

J.S. which hath notice of the Charitable Use, purcha­ses the Lands for valuable consideration, in the name of B. who hath no notice of the Vse; yet B. shall be charge­able, because in truth, J S. was the Purchasor, and he had notice, which runs with the Purchase.J. S. having notice, purchaseth in the name of B. who hath no notice. B. is chargeable with the Cha. Use. Notice runs with the Purchase.

A married Woman which hath notice of the Vse,Tenant by Courtesy is chargeable, though he have no notice. pur­chases the Land for valuable consideration, if the Hus­band be afterward Tenant, by the courtesy of these Lands, he shall be charged by Decreé, though he had no notice of the Vse, because he claims his Estate, under the Estate of her, which had notice, and was lyable.

A Wife endowed, shall be bound by the notice of her Husband.So if the Wife he endowed of Lands, which were gi­ven to a Charitable Use, and her Husband purchased, ha­ving notice of the Vse, she shall be bound by Decreé, though her self had no notice, for she claimed her Estate from her Husband, who had notice, which shall bind her and her Estate, coming from him in privity, by course of Law.

The Lord to whom Land Escheats, is chargeable by the notice of the TenantSo if there be Lord and Tenant, and the Tenancy being given to a Charitable Use, is purchased by one that hath notice, who dies without Heirs; the Lord to whom the Land Escheats, shall be charged with the Vse, though he had no notice of the Vse, because it was chargeable in the hands of his Tenant, and he shall take it with all their charge. And besides, the Lord was no purchasor for valu­able consideration, and therefore not within the Proviso.

Feoffee makes a Fe­ment of a Cha. Use, to one that hath no­tice, the Land is chargeable with the Use.If the Feoffeé to a Charitable Use, makes a Feoffment to another, which hath no notice of the Vse, and for a va­luable consideration upon condition; and after the Pur­chasor makes a Lease back again to his Feoffeés, for a Release of the Condition: In this case, though the Land was discharged in the hands of the Purchasor; yet the Lease shall be charged by Decreé for the Vse, because the Land is come again into the hands of the Feoffée; which was the person trusted with the Vse; and therefore can­not clear the Land from the Vse, nor freé himself from the Trust by any Conveyance, or means, how many so­ever they be.

A Disseisor makes a Feoffment to a Cha. Use, and Leaseth af­terwards to the Dis­seisee, who hath no­tice, this Lease shall not be impeached by Decree.If a Disseisor make a Feoffment to a Charitable Use, and after makes a Lease unto the Disseisée, who hath no­tice of the Vse, and the consideration is for a release to the Disseisor; this Lease shall not be impeached by De­creé, though the Leasee had notice of the Vse, because it was the strength, and cause of the Vse it self.

A Purchasor makes a Feoffment, with war­ranty, to one that hath notice, the Fe­offee shall not reco­ver in value.A Purchasor having notice of the Vse, makes a Feoff­ment, with warranty, for valuable consideration, to another that hath notice, the Land is evict by De­creé by the Commissioners; the Feoffée shall not recover in value, by reason of the warranty, because the cause of Eviction is the notice of the Feoffée, which is no Title paramount to the Feoffment, and therefore the war­ranty extends not unto it.

Grantee of a Rent, purchases of a Te­nant, who hath no notice, parcel of the Land. The rest of the Tenants must pay their Rent. No ex­tinguishment lies in the case. Two Joynt-Tenants, one hath notice, he shall be charged with the whole.The Granteé of a Rent to a Charitable Use, purcha­ses Parcel of the Lands of a Tenant, which hath no no­tice of the Vse; the residue of the Tenants shall be for­ced to pay the Rent, and no extinguishment in this case.

If two Joynt-Tenants of Lands out of which a Rent given to a Charitable Use, is issuing, purchase the Rent, and one of them hath notice of the Vse, he shall be charg­ed with the whole; but if he dye, the other which had no [Page 175] notice, surviving, shall be charged but for a Moity.If he dies, the Survi­vor with a Moity only. Rent given, be purchased by one that had no notice, de­scends to a Tenant that had notice. The Rent is extin­guished.

If a Rent given to a Charitable Vse, he purchased by one that hath no notice of the Vse, and from him it descends to the Tenant of the Land, which hath notice, it shall be extinguished, notwithstanding the notice, be­cause he comes to it by him, which had the Rent discharg­ed of the Vse

A Purchasor of a Lease having notice of the Vse, deviseth the term to one, which hath no notice, upon condition to pay money for it, the notice of the Testator,Notice of the Testa­tor, shall bind the Executor. An Executor assents to a Legacy, it is a Devastavit, and his own Goods are chargeable. shall bind the Executor. And if an Executor having notice of the Vse, assent to the Legacy, it is a devastavit, and he shall be charged with his own Goods, because he might have plead­ed the Gift to the Vse in the Spiritual Court, if he had béen sued for the Legacy, and if the Iudges had not allow­ed the allegation, he might have sued a Prohibition.

A. Purchases Land given to an Vse to himself for years,Upon consideration of Money, those only shall be charged, that had notice. If the Consideration be mixt, as Marriage, and Money, the Law is otherwise. For then all shall be charged by the no­tice of one. the Remainder to B. for life, the Remainder to C. in Fée, and A. pays the Money, which was the Consideration; those only which have notice, shall be charged, because the consideration being Money, it is valuable for every sale; but if she consideration had béen mixt, as Marri­age and Money; it were otherwise, for all shall be charg­ed, by the notice of one.

If a Man and a Woman being an Infant,A Man and a Woman being an Infant, ha­ving notice inter­marry and purchase, &c. they are both chargeable with the Use. Infancy will not give her privi­ledge, because a Pur­chasor and this Joynture shall bare her of her Dower. having no­tice of the Vse, purchase the Land before Marriage, with the Money of the Wife, to them and the Heirs of the Husband, for a Ioynture for the Wife; in this case they shall both be charged, by reason of their notice. And the Infancy of the Woman shall not give her any priviledge, because she is a Purchasor, which is her own Act; And it seéms this Ioynture shall barr her of her Dower, though it be evicted by Decreé, because the cause of the eviction was her own notice.

But if the Husband purchased Land,The Wife shall be bound by the notice of her Husband. having notice of the Vse, and then, after Marriage, made Ioynture to his Wife; in this case, the Wife shall be bound, by the notice of her Husband;After Eviction, she shall be endowed of the rest of her Hus­bands Estate yet if the Ioynture be evicted by Decrée of the Commissioners, the Woman shall be endowed of the rest of her Husbands Land;For this is Equity within 27 H. 8. A former Statute may be construed in Equi­ty by a latter. for this is an eviction within the Equity of the Statute, 27 H. 8. Cap. 10. of Ioyntures; for a former Statute may be construed in Equity by a latter.

A Man having notice of the Vse,A Man having no­tice, marries a Wo­man purchase, that had no notice. His notice shall not charge him, for he was no party trusted. marries a Woman which had purchased the Land, having no notice of the Vse; she dies, and he is Tenant by the Courtesie: his no­tice shall not charge him, because he comes by course of Law to an Estate, which was discharged; and he was no party trusted.

Two Joynt-Tenants, one an Alien, and dies, and an Office is found. The King shall have a Moiety, because his Title is Paramont.Two Ioynt-Purchasors of Land, one of them hath no­tice, if he survive the whole shall be charged; if the o­ther out-live him that had notice, yet he shall be charged for a Moity, because he is in by survivorship, and the Vse was paramount the Ioynture. As if two Ioynt-Tenants he, whereof one is an Alien, and he dies, and then an Office is found, the King shall have a Moity, because the other was in by Survivorship, and the Kings Title was Paramount.

Issue of the Tenant in Tail, with remain­ders over, shall be charged by the no­tice of the Tenant in Tail, because he is remitted to the Estate Tail, which was charged with the Use.Tenant in Tail, Purchasor, having notice, Enfeoffs a Stranger, having no notice of the Vse; the Feoffeé in­feoffs the Issue of Tenant in Tail, who also hath no no­tice; the Tenant in Tail dies, now the Issue shall be charged, because he is remitted to the Estate Tail, which was charged with the Vse.

Upon the Second Part of the Sixth Division.

VAluable consideration of Land or Money.

He made seven Conclusions.

1. A mixt Consideration,Valuable Considera­tion. Mixt Considerations, No valuable Consi­deration within the Proviso of this Sta­tute. though it were good upon other Conveyances, yet it is no valuable Consideration within the intent of this Proviso. As if the Purchase be in consideration of Money, and a Marriage, or Money and natural Affection; because there shall be intended, that there is Fraud in Affection, and the mixture of Mo­ney, is added but for a colour.

2. If a valuable Consideration be coupled with ano­ther, that is unvaluable, and void.If a valuable Consi­deration mixt with another that is not so, the mixture shall not hurt the former Ʋtile per inutile non vitiatur. (As if it be for Mo­ney, and in consideration of antient Amity, or such like) because the whole Consideration, rests upon Money, which is valuable and good, the mixture of the other shall not marr the former. Utile per inutile non vitiatur.

3. The Money or Land are not regarded,A Purchase underva­lued. if either the Purchase be undervalued more than halfe the very worth of the thing,If Purchase-Money be paid, and present­ly repaid, or pro­mise taken for repay­ment. as if 20 l. be paid for that which was worth 30 l. or if there be Fraud in the payment, as if the Mo­ney were paid, and presently repaid, or Promise and Trust given of repayment, (for such things are averra­ble) or if the Fraud be apparent,If the sale be to Ser­vant, Cousen, Bro­ther; all those are Frauds within this Act. as if the sale be to a Servant, a Cousin, or a Brother, it is Fraud by com­mon Intendment of Trust and Confidence in such per­sons.

4. By the name of Money,By Consideration of money, are intended all things; as a Re­lease of a Debt, of Arrearages of Rent, Value of a Wards, Marriage, Release of a Covenant broken, of a debt due by an Infant; Plate of known weight, are within the meaning of consideration for Money. But Mar­riage-Money, Jew­els, and things of pleasure are not. are intended all such things as are of the nature; as a release of a Debt, or of Ar­rearages of Rent, or of the value of a Wards Marriage; but not of Money due, as Marriage-Money, because Marriage it self is no valuable consideration for doubt of Fraud in Affection, But a Release of a Covenant when it is broken, or of a Debt, which an Infant owes for his Dyet, are considerations within the intent of the word Money. So is Plate, of a known weight; But neither Iewels, nor matters of Pleasure (though Mo­ney be paid for them) are within the meaning of consi­deration for Money.Land extends to all things, that depends upon Land, as Rents, Leases, Extents, Wardship, Titles of Entry for Condition broken. Forfeitures, Commons, &c, for­feitures of Marriage. But extinguishment of possibilities, are not within this Pro­viso. If the Consideration be for Money and Usury mixt, the Usu­ry makes all void.

5. Land. This word extends its self to all things that have their dependencies upon Land, as Rents, Leases, Extents, Wardship, Titles of Entry for Condition bro­ken, Forfeitures, &c. Commons, &c. forfeiture of Mar­riage, &c. But extinguishments of possibilities are not.

If the Purchase be for 110l. which 10l. is for Vse, the consideration is for Money and Vsury, and so mixt, that the Vsury shall make all void.

[Page 178] Commissioners may examine into the truth of a considera­tion expressed, and add to them: or falsi­fy them, though the party be Estopped by his Deed.6. What consideration soever be expressed in the Con­veyance, yet the Commissioners may examine the truth of the matter, and add other unto them, or falsify them not­withstanding the party be estopped by his Déed to shew the contrary, that is there contained.

If the Consideration be exemptory, and not performed, it is out of this Proviso, and Commissioners may decree against a Purchasor. But if part be execu­ted, and part execu­tory, or a sum in gross, &c. in part paid, the Commis­sioners are conclu­ded, and cannot de­cree.7. If the consideration be Executory, and not perform­ed, it is not within the meaning of this Proviso; and the Commissioners before the performance, may make a Decrée against the Purchasor,

But if part be executed, and part executory, as a Fine and Rent, or a sum in gross, whereof is paid, and a day given for the residue, in these cases the Commissioners are concluded, and cannot Decrée.

If the Feoffée to an Vse make a Lease for an improved Rent to one that hath no notice of the Vse, the rack Rent is no valuable consideration, to make him a Pur­chasor within meaning of the Proviso, but a Fine for the Lease is a valuable consideration.A Rack-Rent is no valuable considerati­on, but a Fine for a Lease is.

A Feoffment to pay Debts, is no valuable consideration within the Proviso of this Act.A Feoffment to pay the debts of the Feoffor, with the Profits, is no valuable consideration within this Pro­viso.

Upon the Third Part of the Sixth Division. Without Fraud or Covin.

IF Land be given upon condition to maintain a Cha. Use, Private agreement, that the Use shall not be imployed accord­ing to the Donors Gift, is Fraud. and the Feoffeé, and the Heir of the Feoffor agrée, that the Vse shall not be imployed, and that the Heir shall enter for Condition broken, and then make an absolute Feoffment again to him, this agreément is Fraud with­in this Statute.

A Feoffment made unto the Heir in Tail, by the dis­continuance to a Cha. Use, to the intent the Heir may be remitted to destroy the Vse, it is Fraud.A Feoffment made by the discontinu­ance, to the end, the Heir may be remit­ted, to destroy the Cha. Use, is fraud. A Feoffment made with power of Revo­cation, by one that hath notice, and af­ter releaseth the power, is fraud.

A makes a Feoffment to C. of Lands chargeable with an Vse, whereof C. hath notice, and this made with a power of Revocation. C. makes an exchange with B. who hath no notice of the Consideration; and after A. releas­es the power of Revocation, this is Fraud, because it would overthrow the Vse.

The Husband makes a Ioynture to his Wife before Marriage, and after makes her another Ioynture of Lands given to an Vse; upon condition,A Joynture made of Lands given to a Cha. Use▪ upon con­dition to release a former Joynture, is chargeable with the Charity, if the latter be accepted: but it is no fraud within this Act. that she shall refuse the former; if she takes the latter, she shall be chargeable, but this is no Fraud, but she is bound by her own acceptance.

The Father, in consideration of natural affection,Lands given to a Son chargeable with a Cha. Use, of which the Son hath no no­tice, instead of Lands, of which the Son was before seiz­ed, is fraud in the Father. En­feoff his Son of certain Lands, and after, upon condi­tion, that the Son shall Re-enfeoff him of that former Land, he gives him other Land which is chargeable with an Vse, whereof the Son hath no notice; this is Fraud, because the Father had notice; for at the Common Law, where the Father which held by Knights service Infe­off'd his Heir within age, it was Fraud apparent.

If a Rent that was granted to deceive a Purchasor,Rent given to de­ceive a Purchasor, which was given to a Cha. Use, is decree­able, for, Rent is no good con­sideration. be granted to another for Land, which was given to an Vse, though he had no notice of the Vse, yet the Land is decreéable, because such a Rent was no good conside­ration.

If the Feoffée to an Vse,If Land, &c. be ex­changed with an Ac­comptant to the King, and no notice, and the Land be sold, Commissioners may decree the whole Land, for the gain­ing to the King was fraud. The King hath not the Land, but a pow­er to sell it, by 13 Eliz. cap. 4. exchange that Land with an Accomptant of the Kings, who hath no notice of the Vse, and both the parcels are sold to satisfy the Kings debt; the Commissioners may decrée for the Land given to the Vse, because there was Fraud in the Feoffeé, to gain it to an Accomptant of the King, and the Land never came to the King, for the King hath not the Land, but only a power to sell the Land given by the Statute 13 Eliz-cap. 4.

Lessee to a Cha. Use, makes a Feoffment to one that hath no notice. Lessor having notice, enters, the Lease is decreeable for the apparent Fraud. Goods sold in a Mar­ket, and bought again by the, seller is Fraud, if he had notice of the Use.Lesseé to a Charitable Use, makes a Feoffment for con­sideration, to one that hath no notice; the Lessor, or he in the Reversion, having notice, enters for a forfeiture, the Lease is Decréeable for the Fraud apparent.

Goods given to a Charitable Use, are sold in a Market, if the party buy them again, they are decréeable; so is he chargeable that bought them, if he had notice of the Vse.

Goods given to a Cha. Use pass by a general Deed of Gift, is fraud.One that hath Goods given to a Cha. Use, makes a general Déed of Gift of all his Goods, they shall pass with the other, by the general words, and yet they that were given to the Vse, are decréeable for the Fraud im­plied in the generalty.

Goods &c. given to save another harm­less, at undervalue, is fraud without no­tice of the Cha. Use.Goods given to an Vse, are given to another to save him harmless of a Debt, undervalue, he shall be charg­ed for the overplus, without notice.

A sale under the moi­ety of the value, is fraud. But being sold over to another, upon good consideration, the Fraud is purged. A Gift to maintain one for his life, the residue of the profits to a Cha. Use, is fraud ab initio. The Consideration is Exe­cutory.A Sale under the moity of the value, is fraudulent, and decréeable. But if one purchase Lands or Goods, under halfe the value, and sell them over to another, up­on good consideration, bona fide, the Fraud is purged.

The Feoffée or Doneé to an Vse, makes a Gift to one that hath no notice, to find, and maintain him during his life, and the residue of the Profits, to be given in Pios Usus this is a Fraud for all, because the consideration is Executory.

Upon the Fourth Part of the Sixth Division.

Notice. The person that must have notice.COncerning notice of the Nse, which should make a man chargeable, notwithstanding any valuable con­sideration, he considered thrée circumstances.

• 1. The person to whom notice must be given.
• 2. The manner how it may be given.
• Notice is traversa­ble.
  3. The time when it ought to be given.

Notice is a thing traversable, and to be collected by cir­cumstances.

1. The Purchasor is the person must have notice. A Purchasor is he that pays the Money. Notice to a Lessee in Remainder over, &c. is sufficient.1. The Person which must have the notice, is the Pur­chasor, and the Purchasor is he which pays the Money.

If an Estate be made to one for years, the remainder for Life, the remainder in Fée to others, if the Lessée pay the Money, his notice is sufficient.

So if Father or Son have notice, and the Father pays the Mo-Money; if the Son be named a Purcha­sor. If Guardian of an Infant, Committee of an Ideot.So if the Father or the Son have notice, where the Father pays the Money, it is sufficient, where the Son is named the Purchasor.

If the Guardian or Infant have notice, where the Infant is purchasor, it is sufficient. To the Committée of an [Page 181] Ideot, for his Purchase, to the Husband,Husband for the Wives Estate. To the Factor of a Purchasor. To a Dean, Mayor, &c. for the Body Po­litique, are all good notice. for the Estate of his Wife, to a Mans Factor, whom he puts in Trust to purchase for him.

To a Dean, Mayor, or other Head of a Body Politique, for their Purchase. For the head, as it hath the tongue to speak, so hath it the ears to hear, for the rest of the Bo­dy, and therefore notice to the head, is sufficient for the rest of the body Politique.

2. The manner. Any general Information is sufficient,2. To the manner of Notice. Any general infor­mation is sufficient as Church-land, Highway-land, Hos­pital-Land, &c. as sometimes the general name of the Land gives a com­petent notice: as if it be called the Church-Land, or the High-way-Land, or Hospital-Land, &c. the notice of such a name gives an intimation of an Vse.

An Attorney which makes Livery and Seisin upon a Feoffment, to a Charitable Use, hath sufficient notice of the; Vse; so have the Witnesses which hear the Deéd read or a Will read, or the effect declared.An Attorney that makes Livery and Seisin, hath thereby sufficient notice. So have witnesses which hear the Deed read, or the Effect declared.

A Scrivener which writes the Will of a Man that de­vises Land thereby, to repair Highways, though the De­visor afterwards change the imployment to repair Church­es, yet the Scrivener hath sufficient notice of the Cha. Use, to exclude him from being a Purchasor within the Proviso.A Scrivener which writes the Will for a Cha. Use, is there­by excluded from be­ing a Purchasor.

If a Coppyholder surrender to another,By surrender of a Coppyholder, all o­ther Tenants and Suitors, have suffici­ent notice, to a Charitable Use, and this be presented, all the Tenants and Sui­tors of the Mannor, have thereby sufficient notice, whe­ther they were present or absent from the Court; for every one is bound to be present by himselfe or his Es­soynor, who is his Attorney, and therefore at his peril, must take notice of all things done in that Court.

The notice of the imployment,Notice of the im­ployment, is good no­tice. Churchwardens and Overseers of the Poor, and all present at their Accompts, have notice enough. Notice in the Church. is a sufficient notice of the Gift, and therefore both the Churchwardens and Overseérs for the Poor, and such as are present at their Accounts, have notice sufficient of the Gift and Vse.

Notice given generally in the Church, is sufficient for all the Parishioners, whether present or absent, at the time it was given; for every one ought to be there present, or to enquire and know, what was done there.

Notice in a LeétIn a Leet. is sufficient for all that owe suit to the Court; but neither Infants, Women, Clergy-men, or persons above 60 years old, are bound by such notice.

The Copy of a Will read or declared,Coppy of a Will un­der the Ordinaries Seal. under the Seal of the Ordinary, is notice sufficient, but not a Paper Copy.

If a Client bring a Writing to a Counsellor,A Client being told by his Counsel, of the Cha. Use, binds the Client, not the Counsel. and the Counsellor tell him the Land is given to a Charitable Use, this notice shall bind the Client, but not the Coun­sellor.

The Reading of an Inquisition, or Depo­sition, are all good notice.The reading of an Inquisition, or a Deposition, taken concerning the Vse, binds those which hear it.

The time of Notice▪ must be before the Purchase3. The time of the notice must be before the Purchase.

If a Lease be made for years, upon condition to have the Land in Fee, and this was Land given to a Cha. Use, and then before the performance of the Condition, the Lessée hath notice of the Vse; if after he perform the Con­dition, the term now shall be chargeable; but if he per­form not the condition, he shall hold his term without impeachment of the Commissioners Decreé, because it was a purchase before notice.

Notice before Livery and Seisin.Notice before Livery, and Seisin upon a Feoffment.

Before Attornment upon a Grant.Before Atturnment upon a Grant of a [...] Rent or a Reversion, is time enough to bind the Feoffée, and the Granteé.

To the Obligor, be­fore payment of his Money.So is notice to the Obligor before payment of his Mo­ney,

If the Bond were not taken for the payment of a resi­due of the sum, whereof part was paid in hand for the purchase. So is it, if it be before a Déed be delivered,Before a Deed deli­vered, are time enough. though it were sealed first.

Notice before En­rollment of a Dee, doth not bind. The bargain was good before. Inroll­ment is only a cere­mony.If Land be bargained, and sold by Déed, and the party that bought it, have notice before the Inrollment of the Déed, yet he is not bound by that notice, for the bargain was perfect before, and the inrollment is but a ceremo­ny, added by a Statute.

Notice to the right Heir of J. S. is not good for the incer­tainty.If a Remainder of Land given be limited to the right Heir of J. S. or to his eldest Son, which he shall have at the time of his death; notice cannot be given to any man during the life of J. S. for the incertainty, what person shall be his right Heir, or his eldest Son, at the time of his death.

Ʋpon the First Part of the Seventh Division.

IF a Man marry a Woman, to whom a Bond was made for a Charitable Use,, and the Husband releases the Bond, though he had no notice of the Use, yet this is a breach of Trust,What a breach of Trust, and fraud within this Act. If a Husband release a Bond, given to a Wife for a Cha. Use, it is a breach of Trust. and he shall render in recompence, be­cause the notice of the Wife shall bind him.

But if an Obligation be made to a Woman, after co­verture for a Charitable Use, and the Husband wave the Bond,But if it were given after Coverture, and he wave the Bond, it is otherwise. he shall not make recompence, though he had no­tice of the Vse.

Lands are devised for Life, the Remainder in Fée to a Charitable Use. If he in the Remainder have notice, and wave the Remainder, this is a defrauding of the Vse. (otherwise without notice.)Remainder in Fee hath notice, and waves the remainder, this is a fraud, other­wise it is without notice.

A Lease for Life is made, and the Remainder is limited to the right Heirs of J. S. for a Cha. Use: If Tenant for Life have notice of the Vse, in remainder, and make a Feoffment, this is a defrauding of the Vse, because the Vse cannot consist without the Remainder, whereunto it was annexed,A Use in remainder cannot consist, in that the remainder, to which it was an­nexed. and which was destroyed by the Feoffment; and therefore he shall render recompence.

If Tenant in Tail suffer a common Re­covery, this is no defrauding of the Use.But if Tenant in Tail (the Remainder over being limited for a Cha. Use) suffer a common Recovery, this is no such defrauding of the Vse, though he had notice of the Vse, as that he shall make any recompence, be­cause his Estate hath that priviledge annexed by Law, that he may cut off the Remainder lawfully.

Morgagee having no­tice, is chargeable with the Use, if no­tice; otherwise, the Hair of the Mort­gagee.The Mortgageé devises, that if the Money be paid, it shall be imployed to a Cha. Use; and if the Money be not paid at the day; then the Land shall be given to a Cha. Use, the Heir of the Mortgagee enfeoffs the Mortgage be­fore the day of payment; if the Mortgager had notice of the Vse, he shall be charged for the Money, but if he had no notice, then the Heir of the Mortgageé shall be charg­ed with recompence for the Land, for he brake the Trust.

Executors assent to a Legacy, are charge­able out of the Te­stators Estate, if As­sets, if not, out of their own, for re­compense.The termer to an Vse, devises it to an Estranger, which hath no notice; upon condition, to pay 20 l. per ann. the Executors which have notice of the Vse receive the 20 l., and so assent to the Legacy, they shall be charged for recompence of the Goods of the Testator, if they have Assetts, if not, of their own Goods, for they did finish the Fraud, which was commenced by their Testator; but if the Deviseé had notice,But if the Devisee had notice, it is otherwise. there shall be no recom­pence for the lease, because, in that case, the Lease it self is to be decréed for the Vse.

If a Disseisor grant a Rent to a Cha. Use, and the Disseiseé enters and Enfeoffs the Grantée of the Rent, the Vse is destroyed; but without recompence,Disseisee Enters, and Enfeoffs the Grantee of the Rent. The Use is destroyed without recompence, because no fraud.

If a Revertioner re­lease to a Feoffee, the Feoffee shall ren­der in recompence.But if Tenant, for life, grant a Rent-charge to an Vse, and after enfeoff the Grantée, and then he, in the Reversion, release to the Feoffeé, the Feoffée shall ren­der in recompence, because the Feoffment was fraudu­lent, and was not lawfully defeated.

Notice shall descend and bind the Heir.A notice shall descend, and bind the Heir to recom­pence.

The Father holds Land to an Vse, and dies, the Heir, having no notice,Because his Father had notice. sells the Land to another, which like­wise hath no notice of the Vse: yet the Heir shall render in recompence, because his Father had notice of the Vse; so shall the Executors, for the notice of their Testa­tor,So an Executor by no­tice to the Testator. be answerable in recompence, if they have Assetts.

A Testator hath Goods to a Cha. Use, gives them by Will to a Feme-Covert, or converts them to his own use; the Wife only shall be charg­ed, unless the Execu­tors had notice; it is then, in the Com­missioners election to charge either.A Testator having Goods to a Charitable Use, makes a Feme-Covert, his Executrix; her Husband, having no notice of the Vse, gives them by his Will, or otherwise converts them, to his own use, the Wife only shall be charged, and not the Executors of the Husband, unless they have notice of the Vse; and then it is in the Electi­on of the Commissioners, to charge either the Woman, or the Executors of her Husband.

If a man wrongfully, by Trespass, take Goods which were given to a Charitable Use, and sell them in a Mar­ket, the Trespassor shall be charged with recompence for his wrong;Trespasser is charge­able with recom­pence for his wrong. but if the party, out of whose possession they were taken, recover in an Action of Trespass, a­gainst the Trespassor, before recompence made, he is not to be charged with recompence, but the party which re­covered, must be charged;But if recovery be made before recom­pence; upon an acti­on, the Recoverer is chargeable. yet if the Trespassor be charg­ed, the Commissioners by their Decrée may discharge them against the Proprietory, and he may plead the De­creé in Barr.

An Administrator durante minori aetate, without notice of the Vse, imploys the Goods to the benefit of the In­fant: the Goods of the Infant shall make recompence: but if the Administrator waste the Goods, he shall be charged with recompence of his own Goods; like Law of a Guardian in Soccage. or,Goods imployed to the benefit of an In­fant, by an Admini­strator; the Infant is to allow. But if the Admini­strators commit wast, it is otherwise. The like Law of a Guardian in Soccage.

If a Rent for a Charitable Use be issuing out of the Lands of an Ideot, and the King remits him over, the Committeé shall not be charged,The King remits an Ideot, the Com­mittee not chargea­ble. though he have notice of the Vse, until it be allowed, upon suit by Petition, or by Bill of Complaint, because he comes under the Title of the King, who hath the custody of an Ideot to his own Vse.

But if such a Rent be issuing out of the Lands of a Lunatique,But for a Rent out of the Lands of an Ideot, it is otherwise. the Committeés shall be charged with the Rent, without any Suit for allowance, because they have the custody of the Lunatick, for the benefit of the Lunatick, and the King is not entituled to the Profits, but to the disposing of the Custody.

A man having notice of the Vse, purchases the Land in another mans name, which hath no notice, and he, in whose name the purchase was made, sells it to an­other, which hath no notice, he, whose name was used, is a party trusted; and shall make recompence.Purchasor in another mans name, sells o­ver, &c. he whose name was used, shall make recompence

An Accomptant to the King having notice of the Vse, purchases in anothers name, who hath no notice of the Vse; the King sells the Land to one which hath no no­tice, the Accomptant shall be charged in this case; but if the Bargaineé of the King bad notice, he should be charg­ed.An Accomptant pur­chaseth in anothers name, &c. the Ac­comptant is charge­able. But if Bargainee of the King had notice, it is otherwise.

A Bankrupt hath Lands given to an Vse, the Com­missioners sell it to a Creditor that hath no notice of the Vse; in this case the Bankrupt must be charged,A Bankrupts Lands, &c. are sold to a Creditor that hath not notice; The Bankrupt must be charged. and though the Commissioners have notice of the Vse, and sell it, yet they shall never be charged; because they do but execute an authority; but if the Bankrupt dye with­out Heir,If the Bankrupt dye without Heir, the Commissioners may charge the Land with the Use. so that there remains no colour of recompence to be made by him, then the Commissioners upon this [Page 184] Statute, may charge the Land with the Vse, in the hands of the Creditors; &c. for a Charitable Use shall not be barred without actual recompence,A Cha. Use, is not to be barred, without actual recompence. or a party which should render, if he were able.

The first Purchasor, and not he whose name is used, shall be charged with re­compence in this case.One which hath notice of an Vse, purchaseth the Land in the name of another that hath no notice, and after the Purchasor requests him, whose name he used, to make a Feoffment to another, for good consideration, the party having no notice of the Use; in this Case the first Pur­chasor, and not he whose name was used, shall be charg­ed with recompence.

The Father being Feoffeé to an Vse, Mortgages the Land to one which hath no notice,The Daughter with­out notice shall be charged with so much as the Land was worth, at the time of the Pur­chase, with notice, she is chargeable with the whole re­compence. and dyes, having is­sue only one Daughter, and leaves his Wife with Child; the Daughter redéems the Land by payment of the Money, then a Son is born, then the Daughter ha­ving no notice of the Vse, sells the Land to one which hath no notice, the Daughter without notice, shall be charged with so much as the Land was worth, more than she paid for it; and if she had notice, she shall be charged for the whole recompence, though she is not Heir to her Father.

Daughter shall make recompence out of her own Land.A Man having knowledge of the Vse purchases the Land to his Wife, the remainder to his own right Heirs, and dies, having issue only a Daughter; and she, after the death of his wife, having no notice of the Vse, sells the Land to another, which hath no notice of it; the Daughter shall make recompence for the Land, of her own Land, because she is no purchasor within this Sta­tute, but comes in privity of the notice, as Heir to her Father.

Feoffee releases to the Heir of the Dis­seisor, the Heir shall not be charged with recompence, but the Feoffee.The Feoffée to an Vse is disseised, the Disseisor dies seized, and then the Feoffeé, in consideration of Money, release [...] to the Heir of the Disseisor, who had no notice of the Vse, the Heir shall not be charged, but the Feoffée brake the Trust, and he must make the recompence.

Ancestor collateral releaseth with War­ranty, his Execu­tors are chargeable; unless he leave As­setts, then the Heir. If Assetts be Bur­row-English, then the Land, and the Executors of him that released, are chargeable.Tenant for life, the remainder to A. in Feé, being charged with an Vse, the Tenant for life makes a Feoff­ment for valuable consideration: an Ancestor collateral to A. releases, with warranty; and dies, although the Ancestor had no notice, nor was put in Trust with the Land; yet, for the Fraud, his Executors are chargeable; but if he leave Assetts, the Heir shall be charged, if not, then his Executors are to be charged; And if the Assetts descend to Burrow-English, then that Land, and the Ex­ecutors of him that released, shall be charged.

Executors sell Land to the Testators Heir.A Purchasor having notice of the Vse, devises, that his Executors shall sell the Land; the Executors having no notice of the Vse, sell the Land to the Heir of the [Page 185] Testator, who likewise is ignorant of the Vse,The Executors de b [...] ­ [...]is Testatoris, the Heir is chargeable for the Land. the Ex­ecutors shall be charged for recompence de bonis Testa­toris, and the Heir for the Land, because the Notice de­scended.

All Co-parteners, at the Common Law,All co-parteners at Common-Law, Heirs by custom of Gavel-kind, Heirs in Bur­row-English, are bound to make re­compence with Lands dsecended. Heirs in Trust are not. and Heirs by Custom of Gavel-kind, and the Heir in Burrow-English, shall be bound as Heirs, to make recompence with their Land, descended to that kind. But the Heir in Tail, is not to make recompence with such Land discended, be­cause it is not Assetts; for he hath it per formam doni, as much as by descent, and yet,

If the Feoffeé to an Vse sell that Land,Heir in Tail of him that leaves Land to descend, that was gained by fraudulent purchase, is charge­able with recom­pence. and after purchaseth other Land in Tail, which descends to his is­sue; the Heir in Tail, in this case, shall be bound to make recompence with that Land intailed, because it shall be intended that his Father purchased that Land, with the money which he had for his fraudulent sale of the other Land in Vse.

A defrauder of an Vse purchases Land in another mans name, and dies; his Heir procures him,Money in the hands of an Heir, whose Ancestor was a de­frauder. in whose name it was purchased, to sell the Land to another, and the Heir receives the Money; this money in the hands of the Heir, shall be Assetts in Equity,Assetts in Equity. to make recompence for his Fathers fraud.

So if the party, whose name was used,So the Heir of him which puts another in Trust, his Lands are Assetts in Equity. infeoffe the Heir of him which put him in Trust; that Land shall be Assets in Equity, because he comes in upon a Trust descended.

Land is given to a Man, and his Heirs,The Lands of an Heir, in as a special Occupant. for the life of J. S. though the Heir in this Case, be in, as a special Occupant, yet this Land shall be Assetts to make re­compence, as Heir to a defrauder of an Vse.

A defrauder sells a Term with a power of Revocati­on,A power of Revo­cation. this power of Revocation in the Executors, is As­setts in Equity;Assetts in Equity. to make recompence; because they may sell without Revocation; and then the Money will be As­setts.

A Copyhold descended descended, is Assetts, in Equity,Assetts in Equity. A Coppyhold de­scended, and an E­state by Estoppel. Forfeiture of a Term, makes the Term Assetts. so is an Estate by Estoppel.

If an Executor take money to forfeit a Term, the Term shall be Assetts. So if the Heir assent to a for­feiture of Land descended, the Land shall be Assetts, for which the Heir must yield recompence; the remainder to the right Heirs of J. S. (if J. S. was a defrauder of an Vse) is Assetts to make recompence.Remainder of J. S. a Frauder, is Assetts.

Where Executors or Administrators may he charged with recompence, after Administration committed;Equity. The Ordinary may be charged. in such Cases before Administration committed, the Ordina­ry, by Equity, may be charged by Equity upon this Statute.

Assetts in Equity must satisfy Charita­ble Uses first. Equity of this Statute above the Equity of Chancery.Assetts in Equity must satisfy Charitable Vses, before Debts or Legacies; because Assetts in Equity are dis­posable, by this Statute, which ordains them to make recompence, and the Equity of the Statute, is above the Equity of the Chancery.

Assetts in Law, must satisfy debts, &c. first.But Assetts in Law, must satisfy Debts, before Cha­rity; because the Common-Law must order their disposi­tion.

Charity before Le­gacies.Yet Charity must be preferred before Legacies, in dis­position of Assetts in Law.