tion, to any such sole corporation, the executor and not the fucceffor fhall have it; for though they have a natural and a corporate capacity, yet the latter is confined to real property: But Lord Coke makes a diftinction between the cafe of a fole corporation, who is a body politic by prescription, and one who is a body politic by custom, and cites the cafe of the chamberlain of London as an example of the latter, who may take a recognizance to himself and his fucceffors in truft for the orphans: But the reafon does not feem to depend fo much on the corporation being by prescription or by custom, as on his being a trustee or not, and taking for his own benefit, or for the benefit of another. The reafon given by Blackstone (a) for this incapacity of a fole corporation, is, that fuch moveable property is liable to be loft or embezzled, and would raise a multitude of difputes between the fucceffor and executor; which the law is careful to avoid. Perhaps the reafon might be more correctly stated thus, that the law has appointed a revenue in fee to be the only fource from which fole corporations are to support their official or corporate character, and that therefore their fucceffors have no intereft in any chattel given to the predeceffor; for certainly a lease for years given to a corporation fole, and his fucceffors, is as little likely to create a mifunderstanding between the executor and the fucceffor as a gift in fee. If a master of an hofpital, or any fimilar corporation, recover in a writ of annuity, and die, the fucceffor fhall have the arrears and not his executors; but it is otherwife in the case of a parfon, for there the executors are intitled and not the fucceffor; and the reason of the difference feems to be, that the parfon is intitled to the annuity for his own benefit as parfon, and therefore the arrears incurred in his life-time belong to his perfomal representatives; but the master of the hospital is intitled to the annuity only as trustee for the benefit of his houfe (a). On the fame principle, if a rent due to dean and chapter be in arrear, and the dean die, the rent belongs to the fucceeding dean and chapter; if rent be due to the dean in his fole corporate capacity, and he die, it fhall go to his executors; but rent on a lease granted by a fole corporation, accruing after the death of the predeceffor, shall go to the fucceffor, and he fhall have an action of covenant on the lease (b). THE charter granted to the college of physicians, and confirmed by act of parliament, imposes on all offenders in practising phyfic in London, without admiffion by the college, a penalty of 51. per month, one half to the King and the other to the president and college: if the prefident recover in debt against an offender and die, the fucceffor and not the executor shall have a scire facias on this judgment, because the fucceffor recovers as due to himself and the college, and not as representing his predeceffor (c). IT has been before obferved, that, by the rule of the common law, a corporation has an equal capacity of taking property with a private perfon (d), but their capacity to take landed property, is fubject to some restraints imposed by statute, of which it is neceffary now to give an account.-These restraints were at firft introduced to prevent the effects of too great an accumulation of land by religious houses, and other ecclefiaftics; and the ftatutes by which they were imposed, have been called ftatutes of mortmain; a name which, Sir Edward Coke, after enu (a) 19 H. 6, 44. Br. Corpor. 26. (b) Dyer, 48, in marg. Carter, 16, (d) Vid. ante page. I Rol. 515. (c) 1 Rol. 515. merating merating what he calls the conceits of other writers, afcribes to the effects produced by alienation to fuch bodies, obferving that the lands were said "to come to dead hands as to the Lord's, for that by alienation in mortmain, they loft wholly their efcheats and other incidents, and because a dead hand yieldeth no fervice" (a). But Mr. Justice Blackstone obferves, that this appellation arose most probably from this circumftance, that these purchases being made by ecclefiaftical bodies, of which the members, being profeffed, were reckoned dead perfons in law, land holdenby them might with great propriety be faid to be held in mortua manu (b). 4 ACCORDING. to the ftrictness of the feudal fyftem, a vaffal could not alienate his fief without the confent of his lord; but this confent was not more neceffary in the cafe of an alienation to a religious house, than in that of am alienation to a common perfon, and, when, this ftrictness began to be relaxed in the latter cafe, it seems to have been equally relaxed in the former: for Bracton tells us, "that a gift might be made to religious men as well as to others who were capable of a gift, unless the owner of the land was reftrained from alienating to them, by an exprefs exception to his power of alienation, in the charter by which he held the land ;" and he adds, "that no reason or neceffity induced a prohibition with refpect to them, except the form of the original gift" (c). And Lord Coke tells us that he has seen many charters with such clauses of (b) 1 Bl. Com. 479. (a) Co. Lit. 2 b. (c) Item fieri poterit donatio, tam viris religiofis quam aliis quibus dari poterit-nifi modus donationis inducat contrarium; scilicet quod licitum fit donatorio rem datam dare cui voluerit, exceptis viris religiofis-et quod talibus perfonis dari non poterit ficut aliis, nulla ratio vel neceffitas illud inducit nifi tantum modus donationis. Bract, f. 13. a. v. finem. exception. exception (a). But the frequent introduction of fuch claufes into the charters of infeoffment, while it proves the freedom of alienation to religious houses, where no fuch reftraint was exprefsly impofed, proves at the fame time, that many inconveniences were felt from the indulgence of that freedom. By the lands being thus vested in tenants who could never be attainted or die, the lords loft the feudal casualties of wardship, escheat, relief, non-entry, and the like, and the military service of the country decayed. The precaution of individuals was found unable to meet the ingenuity of the clergy; for whenever such clauses of exception ftood in their way, it appears that, as the forfeiture for such alienations accrued, in the first place, to the inmediate lord of the fee, the tenant who meant to alienate, first conveyed his lands to the religious house, and instantly took them back again to hold them as tenant to it; and then, under pretext of some forfeiture, furrender, or efcheat, the fociety entered into thofe lands in right of their newly acquired feigniory, as immediate lords of the fee and the instantaneous feifin in the house by means of the conveyance to it, was probably not confidered as a forfeiture to the original lord (b). This is rendered probable from the terms in which the firft ftatute of mortmain is expreffed (c), by which it is provided "that no one in future should give his lands to a religious house, and take them back again to be held of the fame houfe; and, on the other hand, it should not be lawful for any religious house to take the lands of any one, in order to give them back to him to be held of that house; and if any one should be convicted of so giving his land to a religious house, the gift should be void, and the land fhould be forfeited to the lord of the fee." (a) 2 Inft. 75. (b) 2 Bl. Com. 269. NOTWITH NOTWITHSTANDING this general prohibition, it seems to have been understood, that if the chief lord, of whom the land was immediately holden, gave a licence for alienation to a religious houfe, the forfeiture fhould not be incurred; for, in the recital of the next statute on the fubject (a), it is complained, that "notwithstanding it had been provided, that religious men fhould not enter into the fees of any, without the licence and will of the chief lord of whom fuch fees were immediately holden, yet fuch religious men had entered as well into their own fees, as into the fees of other men, appropriating and buying them, and fometimes receiving them of the gift of others, by which the services which were due for fuch fees, and which at the beginning were provided for the defence of the realm, were wrongfully withdrawn, and the chief lords. loft their efcheats." Ir appears from this, that these religious focieties, in order to elude the first statute, had made it a practice to purchase land held of themselves; and the enacting clause of the prefent, fhews, that one of their contrivances, when they could not obtain the licence of the chief lord for an alienation in fee, was to take leafes from the tenant for long terms of years; a practice which was foon felt to be productive of inconveniencies of the fame kind; and, as the exprefs words of the firft ftatute only prohibited alienation to religious houses,-bishops, parsons, and other fole corporations ecclefiaftical, conceived that the prohibition did not extend to them (b). To remedy these mischiefs, it was ordained, that no perfon, religious or other, whatever, fhould prefume to buy or fell, or receive from any one, under colour of gift or leafe, or of any other title whatever, or by any mean, art, (a) 7 Ed. 1. ft. 2. (b) 2 Inft. 75. G or |