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to answer; because if he was living, and had ceased to be Provost, he would be bound to answer. Besides, the respondent Gamble was to be considered as a mere trustee for the late Provost, who was himself a trustee, and had committed a breach of trust, and was therefore bound to answer whatever tended to discover this breach of trust; and the rather, as Gamble was a party to it, by being the nominal tenant; and that tenants are considered as purchasers for valuable considerations, but the respondents were mere volunteers. If the respondent Gamble could be considered as a tenant, and as such could cover himself by a plea from the jurisdiction of a Court of Equity, yet in his other capacity of personal representative of the late Provost, he could not avail himself of such a plea, but must answer in the same manner as his testator must have done, if now living. Further, if this case had any resemblance to leases made by Bishops, it could only be where leases are made in trust for the Bishop, and the tenants of Bishops leases are interested, that all courts should assist against such leases, when made contrary to the act; and if such leases are fraudulently obtained, it was apprehended a Court of Equity would relieve against such frauds. But the statutes of the college, the Provost's official duty under those statutes, to conform to the act of Charles I. by reserving half the annual value as rent, and the Provost's oath, made him a trustee for his successors, as to the setting the lands for a moiety of the just value, whether the case was within the Irish act of Charles I. or not, and distinguished a lease made by him at a very great undervalue, in trust for himself, from such a lease made by a Bishop. As to one of the principal grounds for allowing this plea, namely, that any answer from the defendants as to the value, might expose them to a forfeiture or penalty, it must be observed, that this point was made only at the bar, and not at all hinted at in the pleadings and so far were the counsel who pre-[534]-pared those pleadings, from conceiving that this point could be of any possible use to the defendants, that they had not, by way of introduction to it, pleaded the disabling part of the statute of Charles I. But if this point had been made by the pleadings, the obvious answer to it was, that the whole equity of the appellant's bill was founded on fraud, and a breach of trust and duty in his predecessor, and that the defendants in this case, his trustees, were as much affected by this fraud as the predecessor himself could be, were he now living, and out of the office of Provost; and no person, before the defendants, ever attempted to conceal a fraud in a Court of Equity, under the pretext that the discovery might subject him to a penalty, in a case where the decree of the court could not possibly exceed the bounds of retribution and compensation; and where the only consequence to the defendant would be, his not being permitted to avail himself of benefits acquired by a breach of trust.

But it was said, that the late Provost acted under the power given by the act of parliament; that a man having a power of leasing, may execute such power in trust for himself, if such lease is made pursuant to the power; that the Provost can take fines; and that there is no difference between taking fines, and making leases in trust for himself.

These leases, however, were not pleaded to have been made pursuant to the power given by the act; but, on the contrary, the plea stated, that the late Provost, being seised in his demesne as of fee of those lands, made these leases. And though a man, with a power of leasing, may make a lease in trust for himself, it did not follow, that the Provost, having such a power, but governed by the college statutes in the exercise of it, could make such a lease, contrary to those statutes; and in the case of a private man, it was conceived, that equity would oblige him and his representatives to discover whether the lease was fairly made, and agreeable to the power. And if there was no substantial difference between taking fines, and making leases in trust for himself, he certainly could not have taken fines for more than a moiety of the rents; and therefore could not have taken, under a trust for himself, more than a moiety of those rents. But it was charged by the bill, and not denied, that he had taken for himself nearly four times as much as he had reserved for his successors. There seemed, however, to be a substantial difference between taking fines, and making leases in trust for the Provost; for in the former case, the predecessor and successor both take fines, and there is no advantage to either, but from the chance of longer living; in the latter case, the predecessor had certain annual rents or profits, the successor had