be inquisitions taken in all—or if a commission goes only to one, an inquisition may be taken afterwards upon another commission in the other (i). The commissioners cannot inquire by the oath of the party himself, or by illegal evidence, as a deed cancelled, or record reversed, &c. (j) So an inquisition must find the gift, and also the abuse, otherwise it will be imperfect; it must find the use truly, otherwise it is void; as if it finds a gift for poor scholars, where it was for soldiers-or a gift for a highway, where it was for poor virgins (k). 4. Of the decree of the commissioners of charitable uses.] The decree must be made by such of the commissioners as were present when the inquisition was taken (1). Sir F. Moore observes, " that the commissioners are restrained to three things in making their decrees and orders: 1st, that it tend and conduce to the employment of the things given; 2nd, that the employment be faithful; 3rd, that the employment vary not from the use and intent for which the thing was given. These three 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; 2, they may supply the defects of the gifts or employments in certainties, circumstances, and decencies; 3, they may ordain conveyances or assurances to be made for the better employment of the case; 4, they may add decencies in the employment for the honour of the donor; 5, they may impose penalties for misemployments" (m). The decree must direct the employment of the land or goods according to the intent of the donor; and an agreement by the parishioners, where several charities were given for different purposes, cannot divert them to other uses; as where one farm was given for repairing the church, another (i) Duke, 148, (144). (j) Duke, 150, (147). (7) Duke, 154 (152); contra, 68118. See Forms of Decrees, Duke, (k) Duke, 149, (145); Com. Dig. 21-33, (53—90). Uses, (N. 17.) (m) Duke, 155 (153). for mending the highways, and another for the poor, it was held to be a misemployment to apply the rents in finding a preacher to officiate in the parish (n). So if the gift was for persons of a particular sex, nation, trade, quality, or profession, the decree could not order the employment to persons of another sex, &c. &c. So if the employment was 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 grammar-school with certainty, the commissioners had not power to decree it to the poor of another parish, to the prisoners of another gaol, nor to the scholars of another school, for that were contrary to the donor's intent (o). If the gift fixes the number of objects, the decree could not alter it; and if the gift was for a particular purpose, as for diet, apparel, house of correction, ease of fifteenths, &c. the decree could not direct the application to other purposes, though the land had much increased in value. Where the donor appointed the application to be in money (p), meat, or apparel, the commissioners could not change the employment (q). But if the use was limited for a chaplain, they might decree, by addition, that the chaplain should be a preacher; so they might appoint the nomination of him to a man of science, as a master of a college, &c., because such things concur in decency and order with the intent of the founder (r). If the use was limited for the relief of a certain number of soldiers, the commissioners might, by their decree, add a surgeon or physician, and allow him fees (s). So where the gift was for the relief of the poor, the decree might direct hemp, iron, &c. to be provided for setting the poor at work (t). If houses given to charitable uses be suffered to be out of repair by negligence, the commissioners might decree those in receipt of the rents to repair them, although they had otherwise expended the rents in performance of the cha (n) Man v. Ballet, 1 Vern. 43; Duke, 158 (156). (0) Duke, 157, 158 (156). (p) Duke, 158, 160, 58. (q) Duke, 158 (157). (s) Duke, 158 (156). (t) Duke, 158 (157). ritable use, and might order the houses to be kept in repair as often as necessary; and the commissioners might order the real and personal representatives of those who ought to have repaired, to do the repairs if they had assets (u). Although a lessee might cut down trees for repairs, the commissioners might award damages for waste (v). If a fraudulent lease or conveyance was made by the trustees of a charity, the commissioners might decree the same to be void, both in interest and estate; but if upon appeal the lord keeper annulled the commissioners' decree, or decreed the lease or conveyance to be good, the estate and interest were revived (w). A lease granted at an undervalue might be decreed by the commissioners to be void; and that the lessee should pay the real value of the land above the rent reserved (x). The commissioners of charitable uses could make a decree against a corporation for the performance of charitable uses (y); so they could enable trustees, in whom lands were vested for charities, to demise them at the best rent (z); and when a certain number of the trustees were dead, might order the survivors to make a conveyance to settle the said lands in the survivors and others, to keep up the number of those appointed (a). So on a breach of trust by the heir or others, charged with a charitable use, the commissioners might transfer the trust unto others, as to the churchwardens or other parishioners of the parish, where the charitable use was to be distributed (b). The commissioners had power to decree damages for the detention of money given to charitable uses, and costs to the party prosecuting a commission for reforming a breach of trust (c). The decree of the commissioners bound all, whom the donor (u) Duke, 63. (v) Duke, 67. (w) Duke, 63, pl. 2. (x) Eltham v. Warreyn, Duke, 67 (640). (y) Duke, 63, 64. (z) Inhabitants of Eltham v. Warreyn, Duke, 68, (640). (a) Duke, 63. (b) Hide's Case, Duke, 77 (635). (c) Duke, 67. See post., p. 287. by his act or conveyance could have bound, as his heir claiming by descent (d); but not persons claiming paramount the gift or devise to the charity. Thus if a tenant in fee-simple made a feoffment, upon condition to perform a charitable use, and his heirs entered for breach of the condition, they were bound by the commissioners' decree; but if a tenant in tail made a gift upon condition to perform a charitable use, and his heir entered for breach of the condition, he was not bound by the decree, because the donor could not bind him; yet if tenant in tail, having issue, took another wife and created a discontinuance, and took back an estate in special tail to the heirs of their two bodies, and then made a gift to perform a charitable use, if the heir entered he was bound by the decree until the first issue recovered. If there was lord and tenant, and the tenant made a charitable gift and died without heir, the lord claiming the land by escheat was bound by the decree of the commissioners (e). So if a lease was made to a charitable use, and the lessee committed a forfeiture by feoffment, &c., if the lessor entered for the forfeiture, he was bound by the decree during the term. If a man disseised the feoffee to a charitable use, and purchased a collateral warranty which descended upon the feoffee, yet the disseisor was bound by the decree, because the collateral warranty was but a bar by estoppel, and a charitable use is never bound by estoppel. If a tenant of land given to a charitable use levied a fine, and five years passed, yet the decree bound the tenant of the land, because the use is not an interest in the lands; and the statute of uses, 27 Henry VIII. c. 10, was made after the statutes 1 Rich. III. c. 7, and 4 Henry VII. c. 24, which bind rights. If the heir of the disseisor was in by descent of lands given to a charitable use, yet he was bound by the decree, for no laches of entry ever destroyed a charitable use, nor any thing barred it but a conveyance to one upon good consideration, and without fraud or notice. Neither was a charitable use bound by the periods of time mentioned in the statutes ; (d) Duke, 160 Ch. Cas. 267; Com. Dig. Uses, (N. 23.) (e) Duke 160, 161 (159,160). See 4 & 5 Wm. IV. c. 23, post. of limitation (ƒ). A remainder limited to a charitable use expectant upon the determination of a preceding estate tail, was barred by a recovery duly suffered by the tenant in tail (g). If a feoffee to a charitable use conveyed the land to one for life, with remainder to the king, the king was bound by the decree of the commissioners, because the use was limited before the title of the king (h). It was resolved, in an early case, that the commissioners could give costs to the party prosecuting the commission for reforming a breach of a charitable trust; and that the lord keeper might increase such costs if the party complained without cause (i). But it is said, in subsequent cases, that the commissioners of charitable uses could not decree costs under the stat. 43 Eliz. c. 4, although, on appeal, the lord chancellor might decree the costs, not only of the appeal, but of the commission; and either increase or lessen the costs, or exempt the party from them altogether (j). If the founder appointed the profits of land for a certain number of poor, and that every one should receive a certain sum, the commissioners might increase the allowance; but if the founder had limited the number of poor to be benefited, the commissioners could not add more. Where the appointment of the master of a free school was given by the founder to his heir, the commissioners might decree that he should be a man of science, it being consistent with the founder's intent to have one of sufficiency; and if the heirs of the founders failed, the commissioners might decree the right of nomination to others, for it could not escheat to the lord (k). A voluntary contribution by soldiers and mariners out of their wages, to be employed for the relief of maimed soldiers and mariners, their wives and children, which had been (f) 32 Henry VIII. c. 2; 21 Jac. I. c. 16; Duke, 161 (160). See 3 & 4 Wm. IV. c. 27. (g) Duke 161 (160). (h) Duke 162 (161). (i) Eltham v. Warreyn, Duke, 67. Rockley v. Keyly, 1 Eq. Cas. Abr. 126: Aylet v. Dodd, 2 Atk. 238. See Wharton v. Charles, Rep. Temp. Finch, 81; East v. Ryal, 2 P. Wms. 284. (k) Duke, 157 (156). |