Several proceedings were had under that act, and a long train of decisions by the commissioners is reported in an old work (h). Of these proceedings it is said that many were not very consonant to justice.

Commissions under this statute have long fallen into disuse, partly by their abuse and partly because they were found insufficient in prosecuting the claims in many instances; and in others, because they were extremely unjust towards the persons called upon to account for property, or sought to be charged, and because they generally ended in the Court of Chancery. The general proceeding, therefore, in cases of charities, has been for many years past (i) by the old mode of information in the name of the attorney-general, who brings the matter in question formally upon record, stating the claims that were made upon the individuals charged with

immediately following goes, there were no such informations for establishing the devise to the use of a charity, but they made out the case as well as they could at law; Attorney General v. Bowyer, 3 Ves. 726. See Porter's case, 1 Rep. 22.

(h) Duke's Law of Charitable Uses. Lond. 1676, Ed. by Bridgman, royal 8vo. 1805. See also Herne's Law of Charitable Uses, 2nd edit. 1663. (i) The last commission was issued in the case of the Kirkby Ravensworth Hospital, 15 Ves. 305, 8 East, 221. The commissions and decrees are filed at the Petty Bag Office, to which reference is frequently made for ascertaining the particulars of old charities. During the first year after the passing of this statute, forty-five commissions of charitable uses were issued. From that time to the year 1643, the returns are defective, the docket-books not being in the Crown Office. From 1643 to the Restoration, there were two

hundred and ninety-five commissions.

The troubled state of the country during the civil wars having probably occasioned great neglects and abuses of charities, a considerable increase took place in the number of commissions, and no less than three hundred and forty-four were issued between 1660 and 1678. From that time to 1700, there were one hundred and ninety-seven; from 1700 to 1746, only one hundred and twenty-five; and from thence to the beginning of the reign of Geo. III. no more than three. So that the whole number, from 1643 to 1760, was nine hundred and sixty-four. Since the latter period, and, indeed, for twenty years before, this remedy may be said to have fallen into disuse. There were only three commissions in the reign of George III. Hans. Parl. Debates, vol. 38, p. 606. It is understood that all the inquisitions taken upon these commissions are in the Petty Bag Office.

a breach of trust, calling upon them to make a defence, and putting their defence upon record, and then having a complete issue upon the record, upon which the judgment of the Court of Chancery may be formed (j).

The king may name the commissioners or sign the commission, as well as the chancellor (k). The lords commissioners may, since the stat. 1 Wm. & Mary, c. 21, issue the commission, that act having given to them the same authority and jurisdiction which the lord chancellor or lord keeper of the great seal of England before enjoyed (1).

It was decided in a recent case, by Lord Brougham, that a commission of charitable uses, issued in 1649, in Cromwell's time, by lords commissioners, was a nullity, the only persons who, before the above statute, could issue such a commission being the lord chancellor and lord keeper; and the statute (m)

() 1 Bligh, N. S., 61, 62, 347. (k) Duke, 144 (139).

(1) By stat. 5 Eliz. c. 18, it was declared that the lord keeper of the great seal should have the same powers as the lord chancellor. By 1 Will. & Mary, stat. 1, c. 21, s. 2, it was declared that the commissioners of the great seal of England for the time being, might use and exercise at all times, according to their commissions, as of right belonging to the lords commissioners of the great seal of England for the time being, all and every the same, and like offices, authority, jurisdiction, and execution of laws, and all other customs, privileges, emoluments, and advantages which the lord chancellor of England, or lord keeper of the great seal of England for the time being, of right ought to have, use, or execute, as belonging to their or either of their said offices, or otherwise howsoever, to all intents and purposes as if the said lords

commissioners for the time being were lord chancellor or lord keeper of the great seal of England, and should have and take place next after the peers of this realm, and the speaker of the House of Commons, unless any of them should happen to be a peer, and then to take place according to his peerage. The third section enacts that any one commissioner (in the absence of the others) may hear motions and give orders and directions touching the interlocutory proceedings in any cause, so as such one commissioner (in the absence of the others) shall not make any decrees, or put the great seal to any thing whatsoever, whereto the whole broad seal ought to be affixed, unless there be two commissioners present.

(m) By stat. 12 Charles II. c. 12, for confirming judicial proceedings during the protectorate, it was enacted that no inquisitions, decrees, or other legal proceedings, in any courts

.

which passed on the restoration of Charles II. did not give it any validity, for that act was confined to decrees and commissions, issued by the lord chancellors and lords keepers, who were put upon the same footing as those intrusted by the king with the custody of the great seal (n).

The commission must be under the great seal, conform to the words of the stat. 43 Eliz. c. 4 (o), and be awarded into the county where the land lies (p), or where the goods are to be employed (q). If land in one county is given to charitable uses in another, or if the land lies or the rent issues out of land in several counties, there must be several commissions to both counties. If the land or goods were in a county palatine and the employment out of it, or vice versa, there must be a commission under both seals (r). Several counties might be included in one commission (s). If a commission be improperly issued, as not warranted by the statute, a motion may be made before the lord chancellor for quashing the commission, who, if in doubt, will direct a case for the opinion of a court of law (t).

2. Who may be commissioners.] There must be five commissioners at least, of whom the bishop of the diocese if in esse must be one (v), otherwise the commission will be void (u); but a bishop elect need not be named if he be not

or by commissioners of charitable
uses, since May 1, 1642, should be
avoided for want of legal power in
the courts, judges, or commissioners.
(n) Attorney General v. Governors
of Atherstone School, Chancery, 8
Aug. 1834. See Duke, 144 (139).
(0) Duke, 144–146.

(p) Duke, 145.

(g) Duke, 149 (144).

(r) Duke, 145, (140); Com. Dig. Uses (N. 14). By stat. 11 Geo. IV. & 1 Wm. IV. c. 70, s. 14, it is enacted that all the power, authority, and jurisdiction of the Court of Session

of the county palatine of Chester and of the judges thereof, and of the Court of Exchequer of the same county, and of the chamberlain and vice-chamberlain thereof, and also of the judges and Courts of Great Sessions, both in law and equity, in the principality of Wales, should cease and determine upon the 12th Oct.

1830.

(s) Duke, 147 (143).

(t) Ex parte Kirkby Ravensworth. 15 Ves. 308. S. C. 8 East, 221. (v) Duke, 117, 145, 146 (140). (u) Duke, 63.

consecrated; nor a suffragan, nor a consecrated bishop, if he is concerned in interest, as if the goods of an intestate given to charitable uses, are in his hands as ordinary until administration granted (w). If the bishop be named, any four of the other commissioners may act without him (x).

Any one of good fame may be a commissioner, even an alien friend, or a person indicted for a petty misdemeanor, as a riot, &c., or an outlaw, if the outlawry has been reversed, for that disaffirms the outlawry; so a citizen or burgess, though the charitable use is for the benefit of his own city or borough (y).

The stat. 43 Eliz. c. 4, requires the commissioners to be of good and sound behaviour; and therefore a person convicted of treason or felony, is disqualified to be a commissioner, as well as one convicted of cosenage, barretry, simony, &c., or of acquitting a felon against evidence; neither one outlawed or excommunicated at the time of the commission, though afterwards pardoned and absolved; nor an infant at the time of the commission, though he afterwards comes to full age, can be a commissioner (z).

The act provides (a), that no person shall be a commissioner or juror who has any part of the lands or goods in question; and a person interested as an executor or administrator of the goods given, is disqualified for a commissioner (b). So a person claiming the lands given in remainder or reversion, or a member of a particular corporation to whom the charity is given, as one of the Mercers' Company, &c., where the gift is to such company, is disqualified for the office of commissioner or juror (c).

3. Of the inquisition.] The commissioners ought to summon the parties interested in the lands or chattels before them (d), and it is proper to require the attendance of the

(w) Duke, 145, 146 (141). (a) Duke, 63 (117).

(y) Duke, 117, 145, (141).

(z) Duke, 145, (142).
(a) 43 Eliz. c. 4, s. 5.

(b) Duke, 146.

(c) Duke, 147 (143); Com. Dig. Uses, (N. 15).

(d) Duke, 151 (147).

parish officers as churchwardens and constables. Four of the commissioners are to send their warrant to the sheriff, to summon a jury to attend at a certain time and place. At the execution of the commission, the parties interested in the matter in question may challenge any of the jurors; none ought to serve who are interested. The jury are to find and return the facts of the case to the commissioners by an inquisition in writing on parchment (e).

The commissioners may make inquiry by all lawful means as to gifts, &c., by examination of witnesses, rentals, accounts, prior inquisitions, an inscription upon the donor's tomb, or by the commissioners' own knowledge. And by such means, may supply a defect in the circumstances found by the jury, as that a gift for poor tradesmen was for those of a particular sort; that the misemployment was for so long a time. It is sufficient if twelve jurors agree, though sixteen are impanelled (ƒ); so an inquisition will be good though it does not find all the circumstances of the gift, if the substance be found; as if the gift be found quibusdam ignotis, or per quendam ignotum. So if it be found varying in circumstances from the truth; as if it be found to be made by fine, feoffment, &c., when it was by will or other conveyance. So it is sufficient if the inquisition finds the general use, though it varies from the particular; as if it finds a gift for books for poor scholars, when it was for gowns for them; for the gift for poor scholars is the general use; or for stones for a highway, where the gift was for gravel or finds for poor scholars generally, where it was for poor scholars in the university-or a gift for such an use, where it was for such and other uses, it is sufficient for so much (g).

But the inquisition must be taken within the county where the land lies (h), or where the commissioners have authority. If the land lies in several counties, there must

(e) Duke, 117. See forms of Inquisitions, Duke, 12-20, (2152.)

(f) Duke, 150, (146, 147).

(g) Duke, 150, (145, 146); Com. Dig. Uses, (N. 16.)

(h) Duke, 119, 120, 148, 149, (144).