may be issued to any borough or place, and not necessarily to the county at large, for the words of the act are "into all or any part or parts of this realm respectively;" and there is nothing in the act to restrain the court from granting it to any particular place. The statute does not import and ought not to be construed, that in all cases the jury must come out of the county at large; the acts relating to the trials of treasons and felonies, and taking inquisitions thereof, are penned in much the same manner with the present, and in those cases it is usual for the jury to come out of the place where the fact was done. And always, unless the contrary be enacted, acts of parliament must be construed agreeably to the course of the common law, as the statute de donis, and so it ought to be in this case. The precedents show that commissioners have gone to particular parts of counties, and a series of precedents makes the law, and sometimes where the words of an act are contrary thereto.

On the question, whether a jury can inquire into lands lying out of the borough, the act requires a jury "of the county;" and it appears by Duke on charitable uses, that upon a commission to the county at large, the jury may inquire into lands and chattels in another county; the words," by any other lawful ways and means," seem to mean a more large inquiry than is warranted by the common law; and as to the commission, the words directing the inquiry refer to the charitable uses, and to the execution of them, and not to the place where the lands lie. These committees were framed, I believe, by the officers upon those of lunacy, &c. which are penned in the same

manner.

The act extends commissions to towns-corporate, notwithstanding the saving clause.

Muckleston v. If the allegations of a bill or information are necessarily

Browne,

confined

Ante. 112.

confined to a trust, or secret trust, the interrogating 6 Vez jun. 52. part must be construed according to the alleging part, and is not to be considered more extensively than the propositions out of which the interrogatories arise.

A new relator may be named in the room of a de- Atty. v. Powel. ceased relator. 1

Before inrolment of the order made, on arguing exceptions to a decree of charitable uses, it may be reheard. If an information is brought in the name of the attorney-general, and it appears that there is a charity which the court of Chancery ought to support, though the information is mistaken, by praying such relief for the charity as cannot be had, yet the court will not dismiss the information, but will support the charity in such manner as can be by law; and this rule was observed by the commissioners for charitable uses.

And the court will presume the charity to be as there stated, unless evidence be offered of the contrary.

2

Wyat's Dick.

855: Rawson v. Turner. 27 May, 1775. Qu. 1725. Ca in Cha 42.

S. C. semb. Wyat's Dick. Barnardist. 151.

519.

490. 1740.

2 Vez. 426. Atty. v. Breton,

1752.

lander, 1790.

Where a charity is so given that there can be no ob- 3 Brown, 166. jects of it, the court will order a different scheme to be Atty. v. Oglaid before it, yet if the objects may exist, though they 1 Vez. jun.246, do not at present (as widows, though there are no widows at present of the members) it will not; and if the relator appear to have no title, the court will not make a decree, but dismiss the information: costs cannot be

given out of the charity.

1805.

Upon a bill for equitable relief as to a rent charge, 11Ves. jun.369. with some few exceptions, all the persons whose estates Atty.v. Jackson, are liable must be brought before the court, that complete justice may be done, and the question tried in the presence of all who are interested; but this rule has been dispensed with under circumstances rendering it impracticable; formerly it was held, that no distinction ought to be made in the proceedings between a charity and an individual;

20

Duke, 65.
Shelly,

Atty. v.

1 Salk, 163.

Ante. 510.

individual. But at this time it is much too late, with reference to a great many doctrines, to insist upon that : for the court does hold out relief to charities under circumstances in which it would not give relief against defendants in ordinary cases. In the case of a charity, it is not necessary that all the terre-tenants should be brought before the court; "they may, if they seek a contri"bution, undertake to make them parties to the infor"mation, or help themselves by such course as they "think fit." The principle here asserted is, that prima facie, a charity may sue without making them all parties. 1 P. W. 399. But see Attorney v. Wyburgh. Upon a plea in abatement it is not necessary to point out the parties by name; it is enough if the objection points out who the individuals are by some description, enabling the plaintiff to make them parties-merely referring generally to houses in London, not particularly describing them, the site of which may now perhaps be part of the king's highway, does not sufficiently point the attention of the relators to the individuals to be brought before the court: yet if it is left uncertain what are the lands and houses chargeable, together with those which are the objects of the information, though they may have been purchased without notice, lost, or are incapable of being distinguished, the court will go on, but will endeavour to aid the other persons who are brought before the court; not dismissing the information, but by inquiries, if any fair hopes can be entertained, endeavouring to bring them ultimately before the court, if it can be ascertained that they are not lost, or are capable of being distinguished.

Ibid. 371.

The court has gone a great way in relieving against want of form and mistakes in pleading as to charities. And in such a case as that suggested, the court will inquire, whether the defendants are liable; whether, if liable, the

- court

court will charge them, and leave them to a new suit
with the other terre-tenants, or first deciding that those
lands were chargeable will direct inquiries; whether any,
and what other lands are chargeable with them, and will
not stop for want of parties, it is better so to do, for
otherwise the information ought to be dismissed.
On a devise of real and personal estate to St. Bartholo-
mew's hospital, the governors and the next of kin agreed
to divide the property, rather than agitate the question
of mortmain; and this agreement was confirmed by a
decree, although the hospital took 3-4ths and the next of
kin 1-4th.

But in a modern case, the court refused to act under an 9 Vez. jun. 232. Atty. v. Hewit, award in a charity cause without the consent of the at- 1804. torney-general, or a reference to the master, to see whe-, ther it was for the benefit of the charity; observing, that in these cases, where the information cannot be filed without the consent of the attorney-general, the principle requires his authority and consent throughout. And a motion was afterwards made, with the consent of him and the other parties, for an account, and for liberty to lay evidence before the master, not only as to the management of the estate, but also of the charity in ques tion by the relators.

If trustees have a discretion to apply the profits of their Lands to repair a road, the court will not interfere, unless they have acted corruptly, but will dismiss the information.

2 Vez. 552. School, 1754.

Atty. v. Harrow

Ante, 500.

combe, 1807.

Where an original deed vested in the parishioners and 14 Vez jun. 7. inhabitants of a parish the right of nomination to the Atty. v. Newcuracy, those persons, like all other cestuys que trust entitled to the beneficial interest, have the right to call upon the trustees in the court of Chancery; and it is merely the ordinary case of a cestuy que trust of an advowson,

Atty. v. Foundling Hospital,

1793.

4 Br. 165.

S. C.

calling upon the trustee to present upon his nomination. The curate, when nominated, is entitled to a stipend; and Lord Hardwicke's opinion is clear, that as far as the title to that liquidated stipend is in question it is in the nature of a charity: with regard to which there is a right in the attorney-general to sue. There is an intimation in 1 Vezey, 43. Attorney v. Parker, and the fact is unquestionable upon Lord Hardwicke's note, that his lordship had considerable doubt, whether regarding the parishioners and inhabitants whoever answer that description, as cestuys que trust of the rectory having a right to nominate the curate, that is a title so much in the nature of a charity, that the party would have a right to sue in the name of the attorney-general: upon the same principle as the opinion expressed in Attorney-general v. Hewer, 2 Vern. 387; where the court said, that not being a free-school was not a charity: and then the proceeding in the name of the attorney-general was wrong; and if the inhabitants were cestuys que trust, it ought to be by bill.

On a motion for an injunction to restrain the governors of the Foundling hospital from building and 2 Vez jun. 42. making bricks on their own estate, on the ground of its affecting the salubrity of its situation and the health of the children educated there, and was in some other respects a deviation from the strict rules and objects of the charity, was stated, on all which the court might enjoin, as in the case of Sulton Colefield, &c. Ante. 514.

2 Vern. 397.
1 Vez. 534
2 Vez.505.551.
Duke, 69.

Lord-commissioner Eyre said, he had not a doubt that the court had a jurisdiction over charities, and that where they are founded in charters or by act of parliament, and a visitor appointed, or where trustees or governors abused their trust, the court could take notice of such abuse; not in the character of a charity, but as an abuse of a

trust;