WHERE there were two deans and chapters to a bishop, and the bishop made a leafe of lands belonging to the bishopric, both must have given their confent, otherwise the leafe would not have bound the fucceffor of the bishop (a): but the confent of the King, who is founder and patron of all bishoprics, was not neceffary (b). And, though there were two chapters, yet if the bishop had the nomination to any of the prebends, he might have granted termino 51 annorum tantum, et non ultra. And afterwards the fame prebendary made another lease, to begin afte rt determination of the first lease—and whether the first lease should continue after the fifty-one years, was the question. And it was adjudged that the faid confirmation, as this case stood, should extend to the whole term, for when the bishop and the dean and chapter, reciting the faid demise for seventy years, had confirmed dimiffionem prædict' in forma pradict', these words pro termino 51 annorum et non ultra" came too late, and the leafe being for seventy years, it was repugnant to confirm dimiffionem prædict' for fifty-one years, for it was the fame as if they had confirmed the lease and term of seventy years for fifty-one years. But if the dean and chapter had recited the lease, and had confirmed the land to the leffee for fifty-one years, that would have been good, for then there would not be any fuch repugnancy in the confirmation.-Parfon makes a leafe of his glebe for term of years, to commence after his death, or makes a grant of a rent charge in fuch form: patron and ordinary confirm. Semble the fucceffor bound. Dyer, 69. pl. 30. Parfon made a leafe of his rectory for forty years, confirmed by the treasurer of the church of York, who was patron in right of his treafurership; the bishop of Winchester, who was ordinary, confirmed the leafe in the life-time of the leffor: before confirmation the treasurer had granted the next advowfon pro hac vice; the leffor died; the grantee presented his clerk; and then the treasurer, with the affent of the archbishop of York and the dean and chapter, aliened the advowson in fee : quære, fays Dyer, 72, pl. 5, whether the new incumbent fhall avoid the refidue of the leafe? (a) 1 Leon. 234. Co. Lit. 301, a. Dyer, 282. pl. 26. (b) Co. Lit. 301.a. over the advowfon or prefentation by the confirmation of the dean and chapter alone to which the prebend belonged (a). So if one of the chapters had been diffolved, the confirmation of the other would have been fufficient (b). IT was immaterial at what time the confent required was given, provided it was before the death of the grantor; and it might be by licence before, as well as by confirmation after the grant; therefore, if the patron and ordinary had granted leave to a parson to grant an annuity or rentcharge, and the parfon had granted it and died, the fucceffor could not have avoided it (c). And the confent might have been given by the fame deed by which the grant was made. Thus, if a parfon had made a leafe for years, and the patron and ordinary had put their hands and feals to it, this would have bound the fucceffor (d). A MASTER of an hofpital or of a college might have. fole poffeffions diftinct from thofe of the house, in the fame manner as the dean; and the affent of the brethren and (a) Dyer, 194. pl. 33. (b) The deans and chapters of Christchurch and St. Patrick's both belonged to the fee of the archbishop of Dublin, and by their several deeds and feals they were accustomed to confirm the leases of the archbishop, though Christchurch was known to be the oldest chapter of the fee: the dean and chapter of St. Patrick's, by their chapter feal, furrendered to the King, after 26 H. 8. 1. his heirs and fucceffors, their church, all their houses, lands, and poffeffions, without the licence or confent of the archbishop, who was their ordinary, and patron of the greater part of their prebends. Queen Mary revived this chapter, but between the furrender and revival, a leafe made by the archbishop was confirmed by the dean and chapter of Christchurch. The judges in Ireland were divided, though the greater part of them were of opinion that this lease should bind the fucceffor.-The opinion of the English judges was, that the leafe was good. Dyer, 282, pl. 26. Jenk. 235. (c) Dyer, 40. Co. Lit. 300. a. (d) Dyer, ibid. fifters, or of the fellows and scholars, to the difpofition of fuch fole poffeffions, was equally requifite in these cases respectively as that of the chapter in the other (a). THE cafe of an abbot or prior differed from that of a dean and of a master of an hospital or of a college; for the abbot or prior could have no poffeffions diftinct from those of the house (b); and with respect to the poffeffions of the house, the whole eftate, to certain purposes, was supposed to be vested in him; whereas in the cafes of the mafter of an hospital, or of a college and a dean, the feifin of the joint poffeffions of the house, was jointly in the master and his brethren and fifters, the mafter, fellows, and scholars, and in the dean and chapter refpectively (c). THERE was, therefore, a difference in the manner in which conveyances were made of the poffeffions of these feveral houses: a grant or lease of the poffeffions of an abbey or priory, was regularly made by the abbot or prior, with the affent of the convent, because, the convent being composed of perfons dead in law, could not with propriety be faid to make a leafe or grant; though if it had been faid that the abbot and convent made the grant or lease, that would not have been a material objection (d). But if a lease was to be made of any thing in which the dean and chapter were feised as dean and chapter, it must have been made by the dean and chapter jointly, and not by the dean with the affent of the chapter: but if it had been (a) Vid. Co. Lit. 347. a. (b) This is meant to apply only to their capacity as heads of their houfes; for an abbot or prior, as well as any of their monks, might have been a prebendary, &c. and confequently have distinct poffeffions in that capacity. Vid. Regiftrum Brevium Originalium. 230. b.— and ante, page 21. (c) Vid. Lit. f. 655, 656, 657. (d) Plow. 199. Dyer, 40. pl. 1-97. pl. 45. Godbolt, 211. of of a thing belonging to the dean alone in his corporate capacity diftinct from the chapter, it might have been by the dean by the affent of the chapter (a). AND if the dean alone, in right of himself and the chapter, had made a leafe for years, and the chapter by themfelves had afterwards confirmed it; this would not have been good, because they are an entire body, and their acts cannot be fevered; but it would have been otherwise, if, after the leafe, the dean and chapter had jointly confirmed it; for then it would have been a new leafe (b). What is faid here of dean and chapter applies equally to the master of an hofpital and his brethren and fifters; and to the mafter, fellows, and scholars of a college. AND, wherever confent was required in the cafe of a fole corporation, it was only neceffary to bind the fucceffor; for without confent the grantor or leffor himself was bound during his life, and a grant or leafe by dean and chapter of the poffeffions of the chapter, without confent of the bishop, was good during the life of the dean who granted or demifed. WHERE any alienation, grant, or demife, was made without the confent of the proper parties, the common law had provided a remedy for the fucceffor: in the case of any of thofe fole corporations which are fuppofed to have in law only an estate for life in their poffeffions, as a parfon, vicar, or prebendary, fuch alienation, grant, or demife, without confent, was merely void against the fucceffor, and he might enter into the land; and an alienation by the head of a corporation aggregate of many perfons capable, of lands belonging to the corporation of which he was the head, without their confent was also yoid, and the fucceffor might enter: this was the cafe of (a) Dyer, 40. pl. 1. (b) Id. ibid. 29 H. 8, cited Leon. 176. an alienation of any of the the chapter lands by the dean without the confent of the chapter, or of the lands of an hofpital or college, by the mafter without the confent of the house, in fee, in tail, or for life: but an alienation by a fole corporation of land of which the fee was supposed to be in him, was not merely void, but operated as a dif continuance, and the fucceffor could not enter, but was put to his writ of entry; this was the cafe of an alienation, by a bishop, of lands belonging to his bifhopric; by a dean, of lands belonging to his deanery diftinct from those of the chapter; and by the master or warden of a college or hofpital, of lands of which he had the fole and distinct poffeffion it was alfo the cafe of an alienation by an abbot or prior without confent of the convent; for though he had no diftinct poffeffions, yet the fee was vefted. in him in right of his houfe, and not of the house jointly with him (a). THIS writ of entry was called a writ of entry fine affenfu capituli, of which there are various forms in the register fuited to the different cafes to which it was to be applied (b). IN the cafe of religious houses, these restraints were found infufficient to prevent the defalcation of the revenues: It was therefore enacted by the ftatute of Westminster the fecond (c), That if abbots, priors, wardens of hospitals, and other religious houses founded by the King, or by his progenitors, from thenceforth fhould alienate the lands given to their houses by him or his progenitors, the land fhould be taken into the King's hands, and holden at his will, and that the purchaser fhould lofe the recovery as well of the (a) Vid. Co. Lit. 325 b. 341 b. 342 a. 346 a. b. 194. K. lands |