lands as of the money he had paid for them; and that, if the houfe had been founded by an earl, baron, or other perfon, he from whom, or from whofe ancestor the land fo alienated was given, fhould have a writ to recover the fame land in demesne. The writ was called a writ contra formam collationis.

THOUGH the words of this ftatute, in that branch which relates to the King, be only "that the lands fhall be taken into the King's hands," yet he could not enter without an office found, and a scire facias grounded on it, against the holder of the land (a).

THE alienation must have been with the confent of the convent or house, and not merely by the abbot or other head; for in the latter cafe, the fucceffor might recover the land, by the writ of entry fine affenfu capituli before mentioned (b). And the writ contra formam collationis lay only of lands given in frankalmoigne; for the words of it, as prescribed by the statute, apply only to fuch a cafe; and therefore, after the ftatute of quia emptores, it became of little ufe; because, after that ftatute, land could not be given to an abbot or prior to hold in frankalmoigne, as all alienations were then to hold of the lord paramount of whom the tenant held before, unless the King gave a licence to alienate in mortmain to hold by that tenure (c).

THE writ was not confined to the founder and his heirs, for land given at the time of the foundation, but extended to land given by any donor at any fubfequent time: but it lay only in favour of the donor and his heirs, and could not be fued by any ftranger. If he who was intitled to the writ at the time of the alienation, died without fuing

(a) F. N. B. 211 G. (b) F. N. B. 211 D. (c) 2 Inft. 459.

2 Inft. 458.

2 Inft. 458. F. N. B. 211 I. I 3

it,

it, then his heir might fue it, and it lay against the fucceffor on an alienation made by his predeceffor, and on an alienation for life, or in tail, as well as on an alienation in fee (a).

THE writ was fued against the abbot who alienated, or his fucceffor, and not against the tenant of the land; and after recovery against the abbot or his fucceffor, the course was to fue a fcire facias against the tenant of the freehold of the land, who might plead in bar, any matter which might prove that the demandant had no title (b).

By ftatute 32 H. 8, c. 28, it is enacted, "That all leafes thereafter to be made of any manors, lands, tenements, or other hereditaments, by writing, indented under feal for term of years or for term of life, by any perfon or persons -having any estate -in fee fimple -in the right of their churches-fhall be good and effectual in the law against the leffors-and their fucceffors, according to fuch estate as is comprised and specified in every fuch indenture of leafe, in like manner and form as the fame should have been, if the leffors thereof, and every of them, at the time of the making of fuch leafes, had been lawfully feised of the fame lands, tenements, and hereditaments comprised in fuch indenture, of a good, perfect and pure eftate in fee fimple thereof, to their own only uses."

BUT it was provided, "That this act should not extend to any leases to be made of any manors, lands, tenements or hereditaments being in the hands of any farmer or farmers, by virtue of any old leafe, unless the fame old lease were expired, furrendered or ended, within one year next after the making of the faid new leafe, nor to any grant to be made of any reverfion of any manors, lands, tenements, or hereditaments, nor to any lease of any manors, lands,

(a) F. N. B. 211 per tot. 2 Inft. 458.

(b) F. N. B. 211 A.

tenements

tenements or hereditaments, which had not most commonly been let to farm, or occupied by the farmers thereof, by the space of twenty years next before fuch lease thereof made; nor to any leafe to be made without impeachment of wafte; nor to any leafe to be made above the number of twenty-one years or three lives at the most from the day of making thereof; and that on every fuch leafe, there should be reserved yearly, during the fame leafe due and payable to the leffors-and their fucceffors to whom the fame lands fhould come after the deaths of the leffors, if no fuch leafe had been thereof made, and to whom the reverfion thereof fhould appertain, according to their eftates. and interests, so much yearly rent or more as had been most commonly yielded or paid for the manors, lands, tenements and hereditaments fo to be let, within twenty years next before fuch leafe thereof made; and that every fuch perfon to whom the reverfion of fuch manors, lands, tenelet should appertain, -fhould and might

ments, or hereditaments, fo to be after the death of fuch leffor

have fuch like remedy and advantage, to all intents and purposes, against the leffees thereof, their executors and affigns, as the fame leffor fhould or might have had against the fame leffees."

It was also provided, " that this act should not extend to give any liberty or power to any parfon or vicar of any church or vicarage, to make any leafe or grant of any of their meffuages, lands, tenements, tythes, profits, or hereditaments belonging to their churches or vicarages, otherwife or in any other manner than they might have done before the making of this act."

THIS ftatute, from its having enlarged the power of all the perfons particularly mentioned in it, has been called the enabling ftatute: The perfons on whofe account it is introduced

I 4

make such leases

introduced here, are an archbishop or bifhop, in right of his archbishopric or bishopric, a dean in respect to his fole poffeffions in right of his deanery, an archdeacon in right of his archdeaconry, a prebendary in right of his prebend, and the like (a). The power which it gives them, is to as are therein described, under the limitations specified, of their own authority without the concurrence of any other person, so as to bind their fucceffors. This ftatute was therefore made in favour of the incumbents, and for the protection of their leffees (b); and they might ftill, with the concurrence of the proper parties, have made the fame eftates they might have done before: but fuch improvident ufe was made of this power, that it was at last thought expedient to restrain it, which was accordingly done by a series of ftatutes made in the reign of Queen Elizabeth, which have for that reafon obtained the name of the disabling or restraining statutes.

By the first of these, ftatute 1 El. c. 19, f. 5, it is enacted "That all gifts, grants, feoffments, fines, or other conveyance of eftates, from the first day of the then present parliament, to be had, made, done or fuffered by any archbishop or bishop, of any honours, caftles, manors, lands, tenements, or other hereditaments, being parcel of the poffeffions of his archbishopric or bishopric, or united, or pertaining to any the fame archbishopric, or bifhoprics, to any perfon or perfons, bodies politic or corporate, OTHER THAN TO THE QUEEN'S HIGHNESS, HER HEIRS OR SUCCESSORS, by which any estate or eftates should or might pass from the fame archbishops or bishops, or any of them, other than for the term of twenty-one years or three lives, from fuch time as any fuch leafe, grant or affurance fhould begin, and on which the old accustomed yearly rent (a) 1 Inft. 44 b. (b) Id. 45 a.

or more should be referved and payable yearly during the faid term of twenty-one years or three lives, fhould be utterly void and of no effect to all intents, conftructions and purposes whatsoever.”

Ir appears from the preceding fections of this act, that the exception in favour of gifts to the Queen was intended in support of the crown; but it was foon turned into an inftrument of evafion of the act, many conveyances having been made to the Queen by archbishops and bishops, with an intention to have the eftates granted over to private ufes; and the abufe became fo glaring towards the end of her reign, that it was thought neceflary by her fucceffor, << out of his pious regard to the interefts of religion," if we may believe lord Coke (a), and the preamble of the ftatute, to enact (b) "that every archbishop and bishop, their and every of their fucceffors, fhould be from and after the end of that feffion of parliament, for ever wholly and utterly difabled in law, to make, do, levy or fuffer any act or acts, thing or things, whereby or by means whereof, any of the faid honours, caftles, manors, lands, tenements, or hereditaments, or any part of them, or any of them, fhould or might be alienated, affured, given, granted, demifed, charged, or in any fort conveyed to the King, his heirs or fucceffors; and that all alienations, affurances, gifts, grants, leafes, charges, and conveyances whatever, from and after the end of that feffion of parliament, to be done, fuffered, or made to the King, his heirs or fucceffors, by any archbishop or bifhop, or their or any of their fucceffors, of or out of any of the faid poffeffions, or of or out of any part or parcel of them, or any of them, and all and every confirmation and confirmations of the fame,

(a) 11 Co. 71. b.

(b) 1 Jac. 1. c. 3.

fhould