corporation has power to take lands in mortmain, and that they have not already acquired property to the extent of their license.

On a conveyance by deed to a corporation aggregate, they will take a fee simple without the word successors, because in judgment of law they never die. But a gift to a corporation sole, as to a bishop or parson, without the word successors, in general passes only an estate for life; though a gift to the king without that word passes a fee, because the king never dies, so a gift in "frankalmoign" of itself, implied a fee (v). It is a general rule, that when a corporation aggregate has by its constitution a head, a grant to that corporation during the vacancy of the headship is void; thus an immediate grant to a corporation consisting of mayor and commonalty, while there is no mayor, or to a dean and chapter, when there is no dean, is void, because without the head, the corporation is incomplete, and the only act it can do during the vacancy is to elect another, although a grant in remainder will be good, if a head be elected during the particular estate (w).

Some corporations have a corporate capacity for some particular purpose only: thus the parson of a church is a corporation for taking land, but not goods, for the benefit of the church; and on the other hand, churchwardens are a corporation for taking goods, but not land, for the use of the church (x). So churchwardens may take goods in succession for the use of the parishioners (y); so a gift of chattels to the parishioners is good, and the churchwardens may maintain an action for them, the gift being considered as for the use of the church (z); but they have not capacity to take a bond to them and their successors, for in such case the right of action will survive to their personal representatives (a). Church

(v) Co. Litt. 9 b., 94 b.

(w) Bro. Corp. 58, 59. See Co. Litt. 264 a.; 10 Rep. 31 b.; Hob. 33; Case of Corpus Christi, Coll. Dalison, 31; S. C. 4 Leon. 223; See Cowp. 224-226.

P. Wms. 125. Vin. Abr. Churchwardens (A).

(y) 2 Bro. Corp. 60; 1 Kyd. on Corp. 29.

(2) Bro. Corp. 73.

(a) Vin. Abr. Churchwardens (D).

(x) Attorney General v. Ruper, 2 pl. 5.

wardens are not a corporation for taking lands by gift or grant for the use of the church or other purposes, unless they have been incorporated by letters patent (b). Therefore a feoffment to the use of the churchwardens, or a gift or devise to the parishioners, is bad; nor can churchwardens prescribe to have lands to them and their successors (c). Neither can they make a lease of lands given to feoffees for the use of the parishioners (d); and a tenant of lands belonging to a parish, who had paid rent to the churchwardens, was held not to be estopped from questioning the title of another party, who claimed the same lands under a lease granted by them (e). The churchwardens cannot maintain trespass, nor other action, for entry or taking the profits of such lands (f).

Though the corporate capacity of churchwardens is in general thus limited, yet in particular cases, either by custom, charter, or statute, they may enjoy a more enlarged capacity. Thus, by the custom of London, the parson and churchwardens constitute a corporation to purchase and demise lands (g). In the case of St. Saviour's, Southwark, it was granted by letters patent of Elizabeth, that the parishioners, or the greater number of them, should annually elect two churchwardens; and that the said churchwardens, and their successors, should be a corporation, with a capacity to make purchases and sell lands. So by charter it was granted, that the parishioners of Wallingford should be a corporation, to buy and sell; in consequence of which, they, or the majority, were accustomed to make leases and estates (h).

By statute 9 Geo. I. c. 7, s. 4, the churchwardens and overseers (which has been construed to mean the major part of them) (i) of the poor in any parish, town, township, or place, with the consent of the major part of the parish

(b) 1 Roll. 393, 1. 10; Keilw. 32 a.; Finch's L. 179; Co. Litt. 3 a. ; Com. Dig. Esglise (F) 3; Ambl. 644.

(c) Vin. Abr. Churchwardens (A) (d) Phillips v. Pearce, 5 Barn. & Cr. 433; S. C. 8 Dowl. & Ryl. 43. (e) Id.

(f) Com. Dig. Esglise (F) 3.

(g) Evelin's Case, Cro. Car. 552; W. Jones, 439; March, 67 pl. 104; Com. Dig. Esglise (F) 3.

(h) Case of St. Saviour's, Southwark, Lane, 21; See 10 Rep. 66.

(i) Rex v. Beeston, 3 Term Rep.

592.

ioners or inhabitants in vestry or other public meeting assembled for the purpose, upon usual notice given, are empowered to purchase or hire any house or houses in the same parish, &c., to lodge and employ the poor in. And by 59 Geo. III. c. 12, s. 8, in any parish not having a workhouse, or where the workhouse shall be insufficient or inconvenient, the churchwardens and overseers of the poor, by the direction of the inhabitants in vestry assembled, may erect and build in such parish a suitable workhouse, or alter and enlarge any messuage or tenement belonging to such parish for that purpose; and purchase and take on lease any ground within the parish for the purpose of such building, or for enlarging any other messuage or tenement belonging to the parish for that purpose; the churchwardens and overseers being thereby authorized to add to and enlarge any insufficient workhouse, as the inhabitants of the parish in vestry assembled shall think fit.

Many inconveniences were experienced with respect to lands belonging to parishioners, in consequence of churchwardens not being a corporation. By statute 59 Geo. III. c. 12, s. 12, (which extends to England only,) the churchwardens and overseers of the poor of any parish are empowered, with the consent of the inhabitants in vestry assembled, to take into their hands any land belonging to the parish, or to purchase, or to hire, and take on lease, for and on account of the parish, any suitable portion or portions of land within or near the parish, not exceeding 20 acres in the whole, and to employ the poor of the parish in the cultivation of such land. The 17th section of the same act enacts, that all buildings, lands, and hereditaments, which shall be purchased, hired, or taken on lease, by the churchwardens and overseers of the poor of any parish, by the authority and for the purposes of that act, shall be conveyed, demised, and assured to the churchwardens and overseers of every such parish respectively, and their successors, in trust for the parish; and such churchwardens and overseers of the poor, and their successors, shall and may, and they are thereby empowered to accept, take, and hold, in the nature of a body

corporate, for and on behalf of the parish, all such buildings, lands, and hereditaments, and also all other buildings, lands, and hereditaments, belonging to such parish; and to sue as a body corporate, in relation to any such buildings, lands, and hereditaments, or the rent thereof.

This act extends to tenements, the profits of which are applicable to the purposes for which a church-rate is levied, and is not confined to those which are applicable merely to the relief of the poor. Thus in an action of ejectment by the churchwardens and overseers of a parish, to recover certain premises which had been demised to the defendant, in 1786, by certain persons described as inhabitants, parishioners, and feoffees of parish and church lands belonging to a parish, it was insisted, that the statute 59 Geo. III. c. 12, s. 17, did not apply; first, because the persons in whom the legal estate was vested, were trustees only; and secondly, because the profits of the premises sought to be recovered, were applicable, not to the relief of the poor, but solely to those purposes for which the church-rates were levied. As to the first of these objections, it was held by the Court, that there is nothing in the act of Parliament to prevent property held by trustees for the benefit of a parish from vesting in the churchwardens and overseers; and it would be very inconvenient that it should be so. It is often difficult for persons who claim under an ancient trust, (where the trustees are numerous,) to ascertain who was the survivor of these trustees; and even if they succeeded in ascertaining that fact, it will not be less difficult to show who is the heir at law of that survivor. Property vested in trustees for the benefit of the parish, seems equally within the mischief contemplated by the Legislature, as well as property not so vested. The Court also held, that the latter words of the 17th section of the act, comprehended all buildings belonging to the parish; and although the poor might be the primary object of that act, yet that the safest course to adopt in construing that section, would be to give full effect to that generality of expression-there being nothing to show that lands or buildings which are applied in aid of the church-rate, do not require

the aid of that provision, as well as those which are applied to the relief of the poor. In both cases, there is the same difficulty of finding out in whom the legal estate in the premises belonging to the parish is vested, and that was the mischief which, by the 17th section, the Legislature intended to remedy; and there was no reason to doubt, that the operation of that clause was intended to be coextensive with the mischief (i).

In order to constitute a body corporate within this act, there must be two overseers and a churchwarden or churchwardens; and parish property does not become vested under it, in either class singly. Thus where two persons were appointed overseers of the poor of a parish on the 5th April, 1823, and on the 22nd of the same month one of the same persons was appointed sole churchwarden, the custom of the parish being to have only one, as it did not appear that at the time of the appointment of the overseers there was a churchwarden; it was held, that the property did not vest in those two persons, as they alone did not constitute a corporation of churchwardens and overseers (j). Where parishioners were in possession of land in the parish, upon which houses were built, the rent of which was applied in aid of the poor rates, and there were no documents to show how they became possessed, a lease granted by the churchwardens alone, was held bad; the case not coming within the statute 59 Geo. III. c. 12, s. 17; because the demise was by the churchwardens without the overseers (k).

It seems, that in an ejectment for parish lands, it would be sufficient to lay a demise by the corporate name of churchwardens and overseers of the parish, naming the parish, without describing them by their names (1).

In early times, landed property was capable of being transmitted to bodies of individuals in succession, which

(i) Doe d. Jackson and others v. Hiley, 10 Barn. & Cr. 885—894.

() Woodcock v. Gibson, 4 Barn. & Cr. 462; S. C. 6 Dowl. & Ryl. 524; See Doe d. Grundy v. Clarke, 14 East, 488; 3 T. R. 594.

(k) Phillips v. Pearce, 5 Barn. & Cr. 433; S. C. 8 Dowl. & Ryl. 43.

(1) Doe d. Churchwardens and Overseers of Orleton v. Harpur, 2 Dowl. & Ryl. 708; See 59 Geo. III. c. 12, s. 17.