Page:The English Reports v1 1900.pdf/1128

revenues was, previous to the resolution, applied in proceedings to defeat those leases, and that Dr. Andrews concurred in the order to the Bursar to make such payment; but the consequence of the resolution was, that one of the tenants surrendered his lease, in expectation of being recompensed by the college out of the assets of Dr. Baldwin; and the bill charged, and the defendants did not deny, that a sum of £4572 was paid by the college, as damages to another of the tenants. But it was apprehended, that if the office of Provost was not to receive in succession the advantage arising from the buying in of those leases out of its revenues, the revenues of the college were in this instance grossly wasted, contrary to the duty of the Provost, and in effect transferred to his representatives. And though it might be objected, that Dr. Andrews had a right to break those leases, and that the assets of Dr. Baldwin were liable to make compensation; yet how far the leases thus surrendered were really impeachable, or how far Dr. Baldwin's assets were liable to make compensation, were matters proper to be examined into at the hearing of this cause; and the rather, as the final determination in the case of Waller, shewed that those assets were not liable. But at all events, the appellant conceived, that by this application of the assets, which were then part of the funds of the college, to the payment of the costs of the ejectments, and the expence of the surveys, to which the assets were certainly not liable, an equity arose, to have the lands recovered in those ejectments go equally and fairly for the benefit of the Provosts in succession. It must be presumed, that such was the intention of the college; but that intention had been defeated, by the leases made by Dr. Andrews for his own benefit, at little more than one fourth of the just value; and it could not be conceived, that the college intended to defray all the costs and expences of so many suits, both in [531] law and equity, and to have paid such large sums of money in those suits, and in having surveys made of those estates, for the benefit of the executors of the late Provost.

It was objected, that the act of parliament of Charles I. requires, that the value should appear upon a legal trial, by the verdict of twelve indifferent persons, at the common law; that these words excluded an issue directed by a Court of Equity; that issues were to inform the conscience of the court, and that if the respondents confessed, that the lands were set to them at less than a moiety of the true value, the Chancellor could not send it to law, and yet could not found a decree upon it.

But to this it was answered, that the act did not confine the trial to twelve men at common law; it expressly gives another method, by the certificate of four persons, authorized. by commission under the great seal; which certificate, approved of by the Lord Deputy and Privy Council of the kingdom, should be peremptory. And though this was repealed by an act of parliament long subsequent, yet this last act was made only to prevent an unusual and unconstitutional mode of trial, and not to prevent the interposition of a Court of Equity, in cases proper for such interposition, and where a Court of Equity can give more relief than is to be had at law. This relief might be given in the present case, where an account of the rents payable by the real tenants might be directed, and the leases to William Gamble might be set aside, or declared a trust for the appellant and his successors, without prejudice to the real lessees. The act does not say, there shall be no discovery; it says, the trial shall be by a jury, but does not preclude either party from coming at evidence as in other cases, and obliging his adversary to discover that evidence by his answer; and it was only contended, that such discovery was proper to be had in cases proper for the interposition of a Court of Equity. The act relates expressly to a trial between the successor of the lessor, and the lessees and their assignees, and not to a trial between the successor, and the representatives of the lessor, or to mere trustees for the lessor; and therefore did not extend to the respondents Gamble and Tomkins, who stood in the place of a predecessor who had been guilty of a breach of trust. If the respondents confessed the charge in the bill, as to the under-value, it would have been a breach of trust in the late Provost, and a Court of Equity ought cither to decree without any trial, (because in that case, by the admission of the party, there could not remain any fact to be tried,) or to retain the bill, with liberty to bring an ejectment.

But supposing the Provost's estate to be within this statute, and that the late Provost had as good a right, observing all requisites, to demise these lands in trust