attorneygeneral at the relation of the overseer of the parish of saint  nicholas and two of the principal inhabitant plaintiff and the mayor alderman  and burgess of the borough of Warwick and several of the alderman in their  private capacity defendant may and where by a royal charter two market two  fair a courthouse and a boothhall for the sale of merchandise together with  the toll and profit of the market be grant to a corporation to be hold ad use  et adj castle et burgentium this can be consider as a grant for a charitable  purpose but must be apply to the public use of the corporation but to what use  it must be apply the member of the corporation be the judge uncontrolled by  this court a decree in a suit against a corporation make with their consent  upon a report of two judge of assize to who the court have refer it can upon a  information find upon that decree be vary the corporation by their plea and  answer rely upon that decree where the fund of a charity have not be apply or  the account pass pursuant to the direction of a decree under the circumstance  of there then be no fund and of the present member of the corporation have  only follow the step of their predecessor and in order to avoid litigation and  expense the court direct the account to be take from the period of six year  before the fill of the information the information be bring in relation to  three estate or fund which be call and insist upon to be charity estate west  tempt Hardwicke er p west tempt Hardwicke saint certain land and tithe grant  to the corporation by charter of that of may Henry d the toll and profit of  market and rend and profit of the boothhall grant by a charter of November  Philip and mary rd sir Thomas white charity the information complain of great  abuse and misapplication of these estate by the corporation and that no  account have be regular take and pray that a general account may be take with  a retrospect for a indefinite space of time that the corporation may make  satisfaction in their corporate capacity in the first place and that the  member of the body who be make defendant in their natural capacity may make  satisfaction for the particular misapplication they have be personal concern  in the property under the first head at the time of the grant be worth only  pound S d but have increase to above pound per annum and be grant by the  charter of incorporation in which the incorporate clause be pro whole world  suitably et common usefulness to dwell in castle predicti and afterward the  land be say to be grant pro consideration predicta the property under the  second head be hold under the charter of Philip and mary which grant two  market and several other franchise a courthouse and a boothhall for the sale  of merchandise together with the toll and profit of the market and these be  express to be hold ad use et adj speech castle et burgentium castle predicti  sir Thomas white charity consist of money secure to the corporation by a deed  of that of July Edward for the purpose of be lend upon loan without interest  to a certain description of person for the term of nine year without take any  profit to themselves for so do in the year a bill be exhibit by one hunt and  other against the bailiff and several of the principal inhabitant of the town  of Warwick relative to certain fund include those grant by the charter of  Henry but not mention those grant by the charter of Philip and mary and on the  that of November James the cause be hear and a commission be direct to sir  clement fisher and other who by their certificate propose a scheme for occupy  the charity estate and manage the charity for the future and on the that of  October it be decree by Lord Ellesmere that the certificate shall be confirm  west tempt Hardwicke and establish and the several matter therein contain be  perform by all party with some variation and explanation a information be  afterward file by the attorneygeneral against the corporation in their  corporate capacity charge a misapplication of certain of the charity revenue  and estate comprise in the charter of Henry which when it come on to be hear  the court refer it to two justice of assize who on the that of June that car  make their report prescribe a proper application and management of the charity  fund and among other thing that the account shall be annual pass before two  justice of the peace for the county of Warwick this certificate of the justice  of assize the bailiff and burgess of Warwick by a petition to the Lord keeper  pray may be carry into effect by a decree and on the that of July car a decree  be pronounce accord the defendant to the present information as to the fund  under the charter of Henry insist by plea and answer upon certain state  account as have be proper pass accord to this decree of car the  attorneygeneral and Mr brown in support of the information contend that the  fund under the charter of Philip and mary have not be apply at a to charitable  use dly that the fund under the charter of Henry have not be administer accord  to the decree of car but have be misapply and that the account of all the  charity have be keep together and have not be annual or otherwise proper pass  that the money under sir Thomas white charity have be lend to person who be  not the object of the charity and for long period than nine year and that the  corporation have take fee for the loan of all which evidence be adduce Mr  serjeant Parker Mr pauncefort Mr fazakerley Mr Noel and Mr tailor for the  corporation contend that the grant of Henry that and of Philip and mary west  tempt Hardwicke er p be make to the corporation for their own benefit and to  preserve government and order in the town and not for any charitable purpose  that the corporation be not party in their corporate capacity to the suit in  which the decree of be pronounce and that they therefore can be bind by it  that the decree of be erroneous in direct the application of the surplus of  the fund which ought not west tempt Hardwicke to have be consider as a trust  that that decree include the premise grant by the charter of Philip and mary  although there be nothing in the bill relate to they and they be not mention  in the decree of car that the court in that suit delegate its authority to the  justice of assize which it ought not have do that the petition of the  corporation to confirm the judge certificate can be construe as a consent  because the decree vary from the prayer of the petition and there be nothing  under the common seal the corporation can be bind where a decree can be carry  into execution by the process of the court but a new bill and a new decree  become necessary the court will exercise its own judgement and will not ground  its proceed on a former erroneous decree Laurence v Bernee Ch r Eq can ab  Johnson v Northey Prec Ch Brockman v Randall Trin but suppose these decree to  stand that the account have be regular keep and pass as thereby be direct at  any rate the court will not decree such a retrospective account as be pray  duke of Marlborough v strong may in the house of lord bro PC and Edward bro PC  in the case of Newark Lord Talbot refuse to decree a account further back than  the fill of the bill as to sir Thomas white charity it be not prove that any  of the more immediate object of the charity ever apply for or want the loan  the fee take by the corporation be only for the security upon which the loan  be secure Mr Bootle and Mr Wilbraham for the defendant in their natural  capacity there be no evidence of any of the defendant have apply any part of  the fund to their own private use it be not show who be present at the several  assembly where the act complain of be do all those who be present and consent  to those order and the representative of those who be dead ought to be party a  trustee for a charity be not to be charge further than a trustee in a private  trust man v ballet vern Mr attorneygeneral in reply in whatsoever sense the  charter be to be consider it be clear that the corporation ought to apply the  profit to some public use for the benefit of the inhabitant in general and can  apply they to their own private use there be no other way of call the  defendant to account and this court have a right to west tempt Hardwicke see  the profit apply accord to the intention of the crown the decree which the  corporation now complain of be not only find on their own consent but their  defence to part of this information be that the account have be pass in  pursuance of the direction of that decree it be however clear from the  evidence that these account have not be so pass and that they can stand Lord  chancellor that may information bring in relation to three estate or fund  which be call and insist upon to be charity estate saint the land and tithe  grant to the corporation by the charter of the that may Henry and the toll and  profit of market and rend and profit of the boothhall grant by charter that  Nov Ph and mary rd sir Thomas white charity information complain of great  abuse and misapplication of these estate by the corporation that no account  have be regular take pray a general account with a retrospect for a indefinite  space of time that the corporation may make satisfaction in their corporate  capacity in the first place that the member of the body who be make defendant  in their natural capacity may make satisfaction for the particular  misapplication they have be personal concern in I shall begin with that estate  which I mention in the second place the toll and profit and market and other  premise grant by the charter of Philip and mary in order to deliver the cause  from it I be of opinion that there be no ground to call that a charity estate  or to direct it to be account for and apply to the use charge in this  information west tempt Hardwicke er p the grant be contain in a royal charter  of conformation give the corporation further franchise and among other two  market two fair a courthouse and a boothhall for the sale of merchandise  together with the toll and profit of the market and these be to be hold adusum  et adj speech castle et burgentium castle predicti this import no more than to  the use and behoof of the corporation No particular charity nor any thing that  be common understand by the term charitable use be express or imply in it west  tempt Hardwicke it must indeed be apply to a public use of the corporation or  borough the member can put the profit into their own private pocket but they  be the judge to what public use it shall be apply and this court accord to its  present rule can control it there be no proof that they have sink these profit  or put they into their own pocket but on the contrary it seem to be agree on  all hand that they have give they as salary to some of their officer and it be  not improper for they to do so to this however the direction in Lord  Ellesmeres decree have be object but the answer to that be that no question  relative to these profit be in issue in that cause or in any before the court  it be therefore impossible that that decree can be carry into execution as to  that part it have be insist upon by Mr attorneygeneral in reply that still  this be a proper subject for a information in the name of the attorneygeneral  in this court to have this estate manage and the profit apply accord to the  intent of the crown and this be true in case it have not be apply to public  use or misapply and convert to the use of private person but if that be not  the case there be no ground for this court to interpose in estate thus general  grant to corporation city of londontown of Newcastle it follow that as to the  promise grant by the charter of Philip and mary the information must be  dismiss the part of the case which come next to be consider concern the estate  grant to the corporation by the charter of Henry this estate be grant in the  charter of incorporation the incorporate clause be pro whole world suitably et  common usefulness to dwell in castle predicti and afterward the land be say to  be grant pro consideration predicta it have be much debate at the bar whether  these word will operate to make those land and premise applicable to the  charitable use mention in the information and if this be res integran I shall  have great doubt about it but I think that point be not now open but determine  and conclude by the decree that have already pass as to Lord Ellesmeres decree  of James the corporation not be before the court in their political corporate  capacity I think they be not bind by it and therefore no further use can be  make of the decree in this cause than as a ancient exposition or construction  of the grant of king Henry west tempt Hardwicke the eight and of the intention  of the donor and contemporary or even ancient exposition of old grant of the  crown which be frequent express in general word have always great weight but  the main stress of this cause as to this estate rest on my Lord Coventry  decree car that be a proper suit to establish a charity in the name of the  attorneygeneral the bailiff and burgess be defendant in their corporate  capacity and therefore they and their successor be as much bind by that decree  as private person in their private capacity will have be by that decree the  rend and profit of the estate grant by king Henry be direct in the first place  to be apply to certain particular use therein specify and that the surplus  thereof shall be dispose and employ by the corporation for the time be to the  use follow videlicet for and towards the repair of the church and school of  saint mary in Warwick and for and towards the bind of poor child bear or breed  in the town to be apprentice and for and towards the relief of the poor and  age people of the say town and for and towards the repair of the great bridge  there lead over the river Avon and to and for such other religious good and  charitable use tend to the general good of the town and ease of the inhabitant  thereof as the bailiff and burgess for the time be shall think meet and  convenient it be hard now to express and foresee all such particular accident  and occasion as aftertime may produce or to restrain they from the performance  of any good work when they have mean to perform the same afterward follow the  direction touch the method of account west tempt Hardwicke er p against the  force of this decree many objection have be make some of which go to the step  the court take in make the decree and other to the substance of it first it be  say that the court delegate their authority to the justice of assize but in  fact there be no delegation of authority the reference recite a treaty for a  accommodation and be make to prepare matter and to put they into this method  in order to bring the party near to a agreement in those day it be a frequent  practice to award commission and make reference which be now disuse if such  objection be allow to old decree many will be overturn it be right to allow  proceed west tempt Hardwicke their proper force accord to the course establish  at the time they take place second as to the substance and justice of the  decree in those day this court exercise a more large and liberal jurisdiction  over charity than it be now in the habit of do many ancient charity where the  grant of the land be in general word subsist as to the particular application  of they under such decree it will be dangerous now to overturn they beside  this be a original bill find on that decree and intend to carry it on that  decree therefore can be vary in this suit nor in any manner without a appeal  or bill of review for if that be to be do there may be two inconsistent decree  relate to the same estate and between the same party stand on the record of  this court at the same time which can be it be say that the present not be a  bill of review but a original bill to have the benefit of and to carry on the  former decree the defendant be at liberty to object to the justice of it and  that the court may look into it and depart from it and upon this head several  case have be cite those case be very proper to the point to which they be  apply but even on the general doctrine there have be considerable difference  of opinion between very great judge who have sit in this court in the present  case there be two thing which entire deliver this cause from that question the  first of they be that the decree be make with the consent of the corporation  for the certificate of the judge of assize be make a decree on their own  petition pray that it may be so and a corporation may bind their successor as  much by consent to a decree as in any other way the condition or restriction  which the court reject go only to one particular which be the increase of the  maintenance of the vicar of saint mary and do not affect the rest but second  what put all these objection entire out of the case be that the defendant have  in their plea and answer rely on this decree and plead that they have regular  pass their account under it both side agree that this be to be the rule and  therefore the defendant can be at liberty at the bar to take exception to it  the next question be as to what relief the relator be west tempt Hardwicke  entitle and how far the state account ought to stand in their way as to the  state account they be plain not pursuant to the direction of the decree  instead of be pass annual in some instance the account for fifteen year be  pass together the account be not of the rend and profit of the estate grant by  Henry in particular nor of the particular disposition thereof but only the  receiver account of the whole corporation estate they do not show what payment  have be make out of this estate but the whole be mix and jumble together it  appear that the justice of the peace be not inform of the rule and measure by  which they be to take this account for they neither see nor read that part of  the decree the consequence of that be that they can not know what they be  about if it shall be say that this be not very material provide the  application of the trust estate have be right that draw on another objection  that a plain misapplication appear for it appear that the particular use to  which the surplus be direct to be apply have not be sufficient regard and  great number of the item allow in the account be to quite different purpose  and not at all warrant by the decree the charity estate have be mortgage and  the interest of those mortgage and great sum for the principal have be allow  for which there be no colour the consequence of which be that a account must  be decree the only question that remain be as to how far back and with what  particular direction this account be to be decree west tempt Hardwicke er p it  be pray that the account may be carry back for twenty year before the fill of  the information but I do not think it proper or for the benefit of either side  to do that the misapprehension of or variation from the decree of car have  subsist long in the corporation and be not the fault of the present particular  member alone they have follow the step of their predecessor there be no  evidence of their have put any part of the money into their own pocket the  vicar of saint mary be present at pass the account and the inhabitant on who  behalf the present information be bring be no stranger to it west tempt  Hardwicke for these reason and to avoid unnecessary expense and vexation I  shall take a short period and borrow the rule of the statute of limitation I  will not however be understand to lie it down that the statute of limitation  be a bar to a charity or a trust certain not but in these case the court must  exercise a discretion and this be more necessary to be do in regard to these  changeable body than in any other case and I think it right to make the rule  of the statute of limitation the measure of my discretion in this case with  regard to sir Thomas white charity some inquiry must be make decree as to the  account and relief demand touch the premise grant by the letter patent of king  Philip and queen mary let the information be dismiss as to the estate grant by  the letter patent of king Henry and any house or land purchase by the  corporation with any part of the rend and profit of that estate I declare that  the rend and profit thereof ought to be dispose of and apply to the charitable  and good use mention in the decree of July car and to be account for accord to  the direction of that decree and that the account insist upon by the defendant  in their plea and answer have not be pass pursuant thereto but in regard to  many circumstance appear in this cause and in order to prevent fruitless  expense and litigation between the party I do not think fit to direct a  account so far backward as be seek by the information and therefore decree  that the defendant do account before the master for the rend and profit of the  say charity estate since the first day of December six year before the  information file let the master inquire what mortgage have be make or suffer  to be subsist on the charityestate during that period of time and what be the  consideration of such mortgage and how the money borrow be apply and whether  the same or any part thereof have be pay off and out of what fund and what sum  of money now remain due and unsatisfy on any such mortgage or mortgage let the  master also inquire whether the salary of the mayor or any other officer of  the corporation have be augment out of the rend and profit of the charity  estate and state the same to the court let the master also inquire and certify  which of the defendant be mayor or alderman of the say corporation west tempt  Hardwicke during any and which of the year for which the say account be direct  and what other person have be mayor or alderman during any and which of the  say year if any balance of the rend and profit of the charity estate shall be  find in the hand of any of the defendant unapplied to the purpose mention in  the say decree let the master examine and certify in what manner the same may  be best apply for the benefit of the charity and all party be at liberty to  lie proposal before he for that purpose as to the management of the say  charity for the future let the master examine and certify whether any and what  augmentation be proper to be make of the particular annual stipend direct to  be pay by the say decree and what surplus will remain of the annual produce of  the say charity estate after such augmentation make and let all party be at  liberty to lie proposal before he for this purpose and I do further order that  a particular account of the rend and profit of the say charity estate distinct  from other revenue of the say corporation be make up and pass annual accord to  the direction of the say decree and that at the respective time of pass such  annual account a copy of the say decree be lie before and read over to the two  justice of the peace who shall respective pass the same as to sir Thomas white  charity decree that the same be establish accord to the intent of the donor  declare in the deed of the that of July that Edward and that the master take a  account how much money arise from that charity be on the first day of November  in the hand or custody of and what sum have be west tempt Hardwicke er p since  receive by the say corporation or of any of the defendant or of any other  person for their or any of their use or by their or any of their order or  authority and how the same have be dispose of and how much money arise from  that charity be now stand out on loan and to what person and whether such  person be qualify to enjoy the same accord to the direction of the deed of the  that of July that Edward and the intention of the donor and let the security  for the same be bring before the say master and if any part of such money  shall appear to be stand out on loan not pursuant to the direction of the say  deed or ig on any other account fit to be call in let west tempt Hardwicke the  master appoint a proper person to call in the same and to put the security  which have be take for the same in suit if it shall be necessary and if any  loss shall appear to have happen of any part of the say money arise from this  charity let the master certify by what mean such loss have be occasion and let  what be now or shall come into the hand of the defendant or any of they or of  any c be place out c reserve all further direction and the cost of this suit  till after the master report all party to be at liberty to resort to the court  as occasion may be Reg lib a foe the statement of this case and the argument  of counsel be take from Lord hardwicke notebook the judgement and decree  verbatim from a manuscript in his lordship handwriting