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ces that appeared entitled to the same construction (w). It is said that if the villain of an abbot or prior purchased lands or tenements in fee, the abbot or prior could not enter into them without the king's license, and that if he did, it was mortmain, but it was otherwise where the villain had the lands by descent (x).
Only a spiritual body politic or corporate, having perpetual succession, was capable of an appropriation; the effect of which was to create a perpetual incumbent, with all the temporal rights of the benefice and cure of souls, and therefore originally appropriations were made to abbots, priors, deans, prebendaries, and such others as could perform divine service. But in progress of time, appropriations were made to bodies consisting of a number of persons, as deans and chapters, and nuns, who could not minister the sacraments nor perform divine service; and a vicar was appointed to perform divine service, to whom a small portion of the revenues was allotted, and they to whom the appropriations were made, retained the principal part of the revenue without performing any service for it. An appropriation could not be made without the consent of the king, the patron, and the ordinary; the pope was formerly considered supreme ordinary, and made appropriations without the bishop, who was only deemed inferior ordinary (y). To remedy some inconveniences which had been felt by parishioners from the appropriation of benefices by religious houses, it was provided by the next chapter of the same statute (z), that in every license for the future to be made in Chancery for the appropriation of any parish church, it should be expressly provided, that the diocesan of the place should appoint, according to the value of the church, a convenient sum of money to be paid and distributed yearly, of the fruits and profits of the same church, by those to whom the appropriation was made, and their successors, to the poor parishioners of such church ;
(w) Cott. Abr. 355; See Mere- (y) Plowd. 496, 497 ; Wats. Cl. L. wether & Stephens's Hist. Corp. 185, 191. 772, 773.
(2) 15 Rich. II. c. 6, 4 Hen. IV. (x) Fitz. N. B. 224 (B) and n. (a). c. 12; Wats. CI. L. 194-202.
and that the vicar should be well and sufficiently endowed. An abbot or bishop could not appropriate an advowson of which they were seised in fee, or had license to purchase, without the king's license, as it was considered an alienation in mortmain (a).
Some gifts of land, not within the statutes of mortmain, having very much increased, it was thought expedient to restrain such alienations, as equally prejudicial to the community with those in mortmain. By statute 23 Henry VIII. c. 10 (which is the first act against superstitious uses), all assurances and trusts of lands to the use of parish churches, chapels, church-wardens, guilds, fraternities, commonalties, companies or brotherhoods, erected and made of devotion, or by common assent of the people, without any corporation, or to uses to have obits perpetual, or a continual service of a priest for ever, or for 60 or 80 years, were declared to be within the mischiefs of alienations in mortmain, and to be utterly void as to such gifts as were made after the 1st of March in that year, for any term exceeding twenty years from the creation of such uses. And all collateral acts and assurances for evading the provisions of that act, are declared to be utterly void. But there is a saving in favour of such cities and towns corporate, as by their ancient customs have power to devise in mortmain (6).
It appears from this statute, that aggregate bodies did and could take in perpetual succession, without being incorporated ; that doctrine being impliedly asserted, by lands being assumed to be held in mortmain when granted by common assent of the people, without any corporation (c).
The property which had got into the hands of the religious houses and monasteries, was appropriated by Henry VIII, to his own purposes (d); and by statute 27 Henry VIII. c. 28, all monasteries, priories, and other religious houses of monks, canons, and nuns, which had not lands, tenements, rents, tithes, portions, and other hereditaments, above the clear
(a) Fitz. N.B.223 (H); 11 Rep.11. Hist. Corp. 1098, 1728. 6) See Porter's case, 1 Rep. 22 b. (d) See Camd. Britt. Intr. 171 (e) Merewether and Stephens's (191); Tann. Not. Mon. Pref. 37-39.
yearly value of 2001., together with all the possessions of such religious houses, were given to the king, his heirs and assigns for ever: the monasteries dissolved by this act are usually called the smaller abbeys.
By the statute 31 Henry VIII. c. 13, all monasteries, priories, nunneries, colleges, hospitals, houses of friars and other religious and ecclesiastical houses and places, and all their manors, lands, tenements, tithes and other hereditaments, which, since the 4th day of February, in the 27th Henry VIII., had been dissolved, suppressed, renounced, relinquished, forfeited, given up, or by any other means come to the king; and all other monasteries, &c., and all other ecclesiastical houses and places which should afterwards happen to be dissolved, suppressed, renounced, relinquished, forfeited, given up, or by any other means come to the king; and all their manors, lands, tenements, &c., and other hereditaments, were vested in the actual seisin and possession of the king, his heirs and successors for ever. The priory or hospital of St. John of Jerusalem, in England, and another house belonging to the same order, at Kilmainham, in Ireland, were dissolved by the statute 32 Henry VIII. c. 24, which was passed expressly for that purpose.
The statute 37 Henry VIII. c. 4, charged misdemeanors on the priests and governors of chantries,—that of their own authority, without the assent of their patrons, donors, or founders, they had let leases for lives, or terms of years, of their said lands; and some had suffered recoveries, levied fines, and made feoffments and other conveyances, contrary to the will and purposes of their founders, to the great contempt of the royal authority; wherefore, in consideration of his majesty's great costs and charges in his then wars with France and Scotland, the Parliament put him, and his successors for ever, in the real and actual possession of such chantries.
Chantries consisted of salaries allowed to one or more priests, to say daily mass for the souls of their deceased founders and their friends; these not being able to stand of themselves, were united, for their better support, to some parochial, collegiate, or cathedral church. Free chapels, though for the same use and service, were of a more substantial and firm constitution, as independent of themselves. Colleges were of the same nature with the former, but more considerable in extent of building, number of priests, and endowments (c).
The remaining establishments of this kind were destroyed by statute 1 Edward VI. c. 14 (d), which gave to the king all chantries, colleges, and free chapels; all lands given for the finding of a priest for ever, or for the maintenance of any anniversary, obit light or lamp in any church or chapel, or the like; all fraternities, brotherhoods, and guilds, (except those for mysteries and crafts,) with all their lands and possessions. There are several exceptions in this act, which have saved some of the least objectionable of these institutions, (stripped however of their superstitions, and such as were only included in the expressions of the act, but not in its design-as the universities and colleges for piety and learning (e).
The statute 9 Geo. II. c. 36, commonly, though improperly, called the Statute of Mortmain, will be hereafter considered (f). The object of that act is not to prevent alienations in mortmain; but in the first place to require the conveyances of lands to charitable uses, to be made by deed inrolled within twelve months before the grantor's death, and to prevent devises of real property, or any interest therein, or bequest of money to be laid out in any such interest, for any charitable purposes whatsoever. The only case in which it can properly be said to relate to mortmain, is as to conveyances to bodies politic or corporate for charitable uses (g).
SECTION II. Of the different kinds of Corporations. The statutes of mortmain being framed principally with the view of preventing the acquisition of lands by corporate
(c) Fuller's Hist. of the Church, (e) 4 Reeves's Hist. 439. book vi. 350; Tann. Not. by Nasmith, (f) See post. chap. iii. Pref. 18, n. (w).
(g) See 4 Ves. 427, 428. d) See post. chap. ii. s. 3.
bodies without license in mortmain, it may be proper in this place to take a general view of the different kinds of corporations.
A corporation, or a body politic, or body incorporate, has been defined (h) a collection of many individuals, united into one body, under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting, in several respects, as an individual; particularly of taking and granting property, of contracting obligations, and of suing and being sued; of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design of its institution, or the powers conferred upon it, either at the time of its creation, or at any subsequent period of its existence.
The first division of corporations is into aggregate and sole. Corporations aggregate, consist of many persons united together into one society, and are kept up by a perpetual succession of members, so as to continue for ever; of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church (i).
A sole corporation consists of one person only, as the king (k), a bishop, a parson, or a vicar. A prebendary or parson holding his possessions singly is a corporation sole; but if with others, he makes a chapter, and thereby becomes a member of a corporation aggregate, so the same person, by being incumbent of the same preferment, may be both a corporation sole, and a member of a corporation aggregate (l). In the case of a conveyance to a corporation sole, to uses by his natural as well as corporate name, the Court would in favour of the conveyance intend that it was made to him in his proper capacity, and not in his corporate character (m).
Another general division of corporations, whether sole or aggregate, is into ecclesiastical and lay (n). Ecclesiastical corporations are those, of which not only the members are spiritual persons, but of which the object of the institution is
(n) i Kyd on Corp. 13.
(1) Wats. CI. L. 377.