der will be good, if, during the continuance of the particular eftate, a new mayor be elected (a).

KING Edward the third newly founded a priory, and granted to the monks that they might choose a prior; and before the prior was chofen, W. made a leafe to A. for life, with remainder to the prior and convent; and to a fcire facias brought against A. he pleaded, that W. was feifed in fee, and leafed to A. the remainder to the prior and convent, and, because there was not yet a prior, he prayed aid of the King, in whom the right was till a prior was chofen; the aid was granted, and a procedendo came; then the defendant fhewed that after the aid granted a prior was chofen, in whom the remainder then vefted, and he prayed aid of the prior, but was refused, because he had aid before, "which proves," fays Lord Coke, "that the remainder in fuch cafe is good" (b).

BUT a grant made in remainder to a corporation, when no fuch corporation exifts, is void, though fuch a corporation be erected, before the expiration of the particular eftate (c).

ON the principle just stated, a devife of land, by the master or president of a college to the house of which he is the head, is void; because the devife muft take effect at the inftant of the death of the devifor, and at that moment the corporation is incomplete (d).

A GRANT may be made to a corporation by the fame charter by which it is erected (e).

HAVING Confidered the capacity of corporations to take property, we are natuarally led, in the next place, to treat of the power they have to difpofe of it.

(a) 1 Inft. 264. a. (d) Dalison, 31.

(b) 10 Co. 31. b.

(c) Vid. Hob. 33.

(e) 2 Ed. 6. Bro. Corpor. 89. 10 Co. 74 b. ALL

ALL civil corporations, fuch as the corporations of Right of. Alcivic mayor and commonalty, bailiffs and burgeffes of a town, Corporals or the corporate companies of trades in cities and towns, toalimunte and all corporations established by act of parliament for their properkcome specific purpose, unless expressly restrained by the

act which eftablishes them, or by fome fubfequent act, have, and always have had an unlimited controul over their respective properties, and may alienate in fee, or make what estates they please for years, for life, or in tail, as fully as any individual may do with refpect to his own property (a).

AT COMMON LAW, the mafter, fellows, and scholars of a college; the mafter or warden of an hospital; an abbot or prior and his convent, had the fame unlimited controul over the property of their respective houses; and a dean and chapter in their aggregate capacity; a bishop, a dean, an arch-deacon, a prebendary or canon, a parfon or vicar, each in his capacity as a fole corporation, might, with the concurrence of such persons as had an intereft in the difpofition of the refpective poffeffions, have made any grant whatever (b).

THE bishop, the dean and chapter, composed of prebendaries or canons, and all other perfons belonging to a cathedral church, at first held their poffeffions together in grofs; but in order to avoid confufion and promote better order, or for other reafons, it was afterwards thought proper to divide them; and part was affigned to the bishop and his fucceffors, and other part to the dean and chapter to hold by themselves refpectively: the poffeffions of the dean and chapter, too, are for the most part divided, the dean having one part alone in right of his deanery, and

(b) Co. Lit. 44. a. 300, 301. 1 Bur. 221.-Vid. Madox Firma Burgi, for examples c. 1. f. 4.

each

each particular prebendary or canon a certain part in right of his prebend or canonry. The refidue belongs to the dean and chapter in their aggregate capacity (a).

WHEN all the poffeffions of the cathedral church were held in grofs, the bishop affigned to each of the prebendaries or canons, a certain maintenance out of the common ftock; and for that reafon, after the divifion of their poffeffions, he was confidered as patron of all the prebends as of common right. The King, however, is at this day patron of most of the great prebends (b).

To every grant by the dean and chapter, the affent of the bishop was neceflary; and to every grant by the bishop, the confent of the dean and chapter; because the fee was not in the bishop alone, of the poffeffions of the bishopric, but in the bishop together with the dean and chapter; and the fee was not in the dean and chapter alone, of the poffeffions of the dean and chapter, but in the dean and chapter together with the bishop.

1

SOME other föle corporations ecclefiaftic, fuch as prebendary, parfon, and vicar, have only a freehold in their poffeffions, the fee being in abeyance; and therefore not only the confent. of the bishop as ordinary, but also the confent of the patron was neceffary to render their grants good against the fucceffor; and the patron who gave his confent must have been patron in fee; for if he was only tenant for life or in tail, his confent would not have bound any fucceffor, who did not come to the benefice during his life; and, in the cafe of a parfon or vicar, where the bifhop was patron, the confent of the bifhop was not fufficient without that of the dean and chapter; when he confented as ordinary only, they had no controul over his act;

(a) Vid. the cafe of the dean and chapter of Norwich, 3 Co. 75and Burn's Ecc. Law, tit. Deans and Chapters.

(b) Ibid.

but,

but, when he was patron, they had an interest in what he did in that character: the advowfon or patronage was parcel of the poffeffions of the bishopric; and therefore, without the dean and chapter, he could not make the grant good after the death of the incumbent, but during his own life (a), or till he was tranflated to another bishopric (b).

IT is faid, "that at common law, the dean might have paffed the poffeffions of his deanery, with the consent of the chapter only, without that of the bishop; but that a prebendary could not alienate the poffeffions of his prebend, without the consent of the bishop as well as of the dean and chapter (c); because in the latter cafe, the bishop was patron:" but it is apprehended, that in the cafe of the dean as well as of the prebendary his confent was necessary in the character of ordinary.

In the cafe where the bishop was patron of the prebend, it is certain that the confent of the chapter was neceflary as well as that of the bishop, on the fame principle that it was neceflary where the bifhop was patron of an advowfon to a common benefice; it is also certain (d) that their confent was neceffary, where he was not patron, because the whole chapter have an interest in the poffeffions of each particular prebendary; and in most of the cases reported, if not in all, of grants by prebendaries, the con

(a) Co. Lit. 300. b.

(b) Vid. Dyer, 356, pl. 42. where it is faid, "that where the bishop was patron of a church, the confirmation of the bishop alone, withou that of the dean and chapter, was fufficient at least during the life of the bishop, though he was tranflated to another bishopric," which feems contrary to the reason of the thing.

(c) Jenk. 235.

(4) Vid. the writ de affenfu capituli, F. N. B. 194 K.

fent

fent of the chapter appears to have been actually given where fuch grants were held good (a).

66

WHERE

(a) As the law on this fubject is now altered, I am fatisfied with giving, in the text, a fummáry of what it was; but for the fatisfaction of fome readers I fhall infert, by way of note, the principal cafes I have been able to collect from the old reports.-By the opinion of the greater number (Popham, C. J. and Fenner, §.) against Gawdy, J. a leafe of the prebendal lands by a prebendary is good only for the life of the leffor, although confirmed by the dean and chapter," Pop. 120, 121. So that by their opinion the confirmation of the bishop was neceffary.-" "Where a bishop was patron of a provoftship in a cathedral church, and the provoft made a leafe confirmed by the dean and chapter, but not confirmed by the bishop, the leafe was held void against the fucceffor of the provoft." Benl. 81. pl. 126.

A prebendary in the cathedral church of Chichester made a lease for years by indenture, in the beginning of which it was faid, "that he, with the affent and consent of the reverend father Robert bishop of Chichester, and the dean and chapter of the fame church," and in the conclufion it was faid," in witnefs whereof the parties abovesaid to these prefents have interchangeably fet their feals," and the feal and name of the prebendary, and alfo the feal and name of the bishop, and the chapter feal were annexed to the leafe, without any words of confirmation, or affent expreffed by the chapter: the question was, whether this leafe fhould bind the fucceffor of the prebendary: but in anfwer we have only a quære. Dyer, 106. pl. 21.

A prebendary of the cathedral church of Sarum, by deed indented demised a rectory parcel of his prebend for seventy years; the bishop confirmed the demife for fifty-one years, and the dean and chapter confirmed it as to the faid fifty-one years and not more; it was adjudged that these confirmations were good, though severally made and only for part of the term; and it being queftioned whether the confirmation rendered the leafe good for the whole term, it was held by all the juftices that it did. P. 38 El. P. 16 El. 1 Anderf. 47. faid to be doubted, Dyer 338. pl. 43. In Foord's cafe, 5 Co. 81, it is faid, that the bishop, patron of the said prebendary, and the dean and chapter by their feveral inftruments, under their common feal, reciting the faid leafe, confirmed dimiffionem pradi&tam in forma prædicta factam pro

terming