Imatges de pÓgina
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upon assizes, juries, and other inquisitions, in the same manner as before the intended alienation. It then commanded, that the writ should be returned with the inquisition into Chancery, under the seals of the escheator and of the jurors, by whom the inquisition was taken (c). The forms of such writs were various, and adapted to the circumstances of the parties desirous of aliening (d). The course of proceeding seems to have been for the tenant who intended to convey in mortmain, to apply first for leave from the king to sue out the writ, and then, after the return of it by the escheator, if the inquisition was in favour of the alienation, to obtain letters patent of license from the king and the intermediate lords; but these could not depart from the substance of the particulars rehearsed in the writ (e).

These writs appear to have fallen into disuse in the time of Fitzherbert, by the practice of obtaining the king's license to alien in mortmain, with a clause at the end, dispensing with the writ of ad quod damnum, or any other writ and inquests, and commands, although such license was considered valid without such express dispensation (f). A license was necessary to enable an abbot and his successors to take a rent charge (g). So if an abbot held of another man by a certain rent service, the lord could not release the rent without the king's license, and if he did, it was mortmain. The king's license was considered necessary on the exchange of lands between two corporate bodies (h). Such a license is also now necessary for enabling corporations to take leases for long terms of years (i). A license was necessary in order to found and endow a prebend with lands (k). And if a man devised lands or rents to his executors, and to their heirs, to dispose according to his will, and he afterwards by his will directed them to give the same in mortmain, they ought to have the king's license and writ ad quod damnum (l).

(c) Fitz. N. B. 221 (0)-223.
(d) Id. 222(C)-226.
(e) Id. 221 (O), 224 (C), (D).
(f) Co. Litt. 99 a.
(9) Fitz. N. B. 223 (B).

(h) Id. 223 (I), 223 (E), 224 (D).
(i) See ante, p. 9.
(k) Fitz. N. B 224 (E).
(1) Id. 224 (F).

An abbot could not give lands or tenements in mortmain to another abbot or prior, or body corporate, without the king's license; the words of the statute being so that the lands and tenements may not by any means come into mortmain (m).

2. The present power of the Crown to grant such licenses.] The pretended power of the crown of suspending or dispensing with laws, or the execution of laws, by regal authority, without consent of Parliament, having been declared illegal (n) by the statute 1 Will. & Mary, sess. 2, c. 2, it was thought prudent to confirm by act of Parliament, the king's power of granting licenses in mortmain, in order, on the one hand, to prevent such licenses from being confounded with a dispensation with the statutes of mortmain, and on the other, to remove all doubts that might have been entertained of their validity.

Accordingly, the statute 7 & 8 Will. III. c. 37 (0), after reciting, that it would be a great hindrance to learning, and other good and charitable works, if persons well inclined might not be permitted to found colleges or schools for the encouragement of learning, or to augment the revenues of colleges or schools already founded, by granting lands, tenements, rents, or other hereditaments, to such colleges or schools, or to grant lands, or other hereditaments, to other bodies politic or incorporate, then in being, or thereafter to be incorporated for other good and public uses-enacts, that it shall and may be lawful for the king, his heirs and successors, when, and as often, and in such cases as his majesty, his heirs and successors shall think fit, to grant to any person or persons, bodies politic or corporate, their heirs and successors, license to alien in mortmain, and also to purchase, acquire, take, and hold in mortmain, in perpetuity or otherwise, any lands, tenements, rents or hereditaments whatsoever, of whomsoever the same shall be holden. The second section declares, that lands, tene

(m) Id. 222 (D); See ante, p. 8. (0) This act was extended to Ire

(n) See 2 Hawk. P. C. b. ii. ch. 37, land by Ir. stat. 32 Geo III. c. 31. $ 30, 31.

ments, rents, or hereditaments, so aliened or acquired, and licensed, shall not be subject to any forfeiture, for or by reason of such alienation or acquisition (p). It is observable, that this statute authorizes the king to grant mortmain licenses without any regard to the person of whom the lands were held ; and declares, that they shall not be subject to any forfeiture. Before this act, the king's license only prevented the forfeiture to himself; and if there was any mesne lord, he might take advantage of the mortmain statutes, notwithstanding the royal license (9). But this statute seems to be expressed so as to extend the operation of the king's license universally, by preventing a forfeiture to other lords as well as to the king himself. The statute is also silent as to the writ of ad quod damnum, which anciently was thought an essential preliminary to the license, in order that the king might know what prejudice would arise to himself or others from granting it. Since this statute, writs of ad quod damnum, previous to licenses from the crown to alien in mortmain, have not been usual (r); but in modern acts of Parliament, enabling corporations to hold lands, there is usually a dispensation with that writ, as well as the statutes of mortmain.

A license to alien in mortmain may be given for several purchases, and does not determine by the death of the king who granted it, but may be afterwards acted on (s).

Charters of incorporation usually contain a clause, declaring that the intended corporation shall be a body politic and corporate, and, by the particular name given to it, “ have perpetual succession; and for ever thereafter be able and capable in the law, and have power to purchase, receive, and possess any goods and chattels whatsoever, and (notwithstanding the statutes of mortmain) to purchase, hold, and enjoy, to them and their successors, any lands, tenements, and hereditaments whatsoever, not exceeding, at the time or

(p) An account of the licenses (9) See Fitz. N. B. 221 (O). which had been granted in April, (r) Co. Litt. 99 a, n. (1). 1736, under this act, will be found -($) Co. Litt. 52 b.; Fitz. N. B in the Journals of the House of 223 (G); Plowd. 457. Commons, vol. xxii. 708—-710.

times of purchasing such lands, tenements, and hereditaments respectively, the yearly value, at a rack rent, of [a certain sum specified) in the whole, without incurring the penalties or forfeitures of the statute of mortmain, or any of them.

A license in mortmain (1) almost invariably specifies the amount in value of the lands which may be held by the corporation to which it is granted. When purchases have been made to the full extent of the license, a further one must be obtained ; for which purpose a petition must be presented to the king, which will be referred to the Attorney General, or Solicitor General, who will make a report; upon which the license required will be either granted or refused. The discretion exercised in making such report, will probably be guided by the present opulent state of the members of the corporation, and the use intended to be made of the augmented revenue (u).

(1) See form of such a license, in nors and their successors, to hold the Appendix.

in mortmain the lands conveyed to (u) Where it appeared that the them, and to purchase others not lands of the governors of a free exceeding 400l. per annum. In re grammar school, incorporated by Rovington School, Patent Rolls, charter, dated the 13th May, 1566, 1827. License was granted to the with power to purchase lands not mayor, bailiffs and burgesses of the exceeding 301. a-year, had greatly town of Northampton, to accept and increased in value ; and that the go- take a grant or conveyance of cervernors had sold part of their lands, tain pieces of land therein menand had contracted for the purchase tioned, and to hold the same to the of other lands; and that the lands use of them and their successors belonging to the school remaining and assigns for ever, with a license unsold were under the yearly value to all persons whomsoever to grant, of 2301., and those contracted for, sell, convey, and dispose of the under the yearly value of 1501.: all same lands in mortmain to the said forfeitures which had accrued to the mayor, &c., in exchange for the king, on account of the governors lands belonging to the corporation. having taken lands without license Patent Rolls, 30th Aug. 1827. See in mortmain, were remitted; and ante, p. 38. license was granted to the gover

42

SECTION IV.

Of the Dispensation with the Statutes of Mortmain

in favour of particular Corporations.
1. Foundation of Hospitals.
2. Workhouses, p. 49.
3. Augmentation of small Livings, p. 51.
4. Parsonage Houses, p. 52.
5. Building of new Churches, p. 53.
6. Corporations, p. 55.

The statutes of mortmain have been dispensed with, either generally or to a limited extent, by various acts of Parliament, some of which will be here mentioned (v).

The recovery of the possessions belonging to religious bodies which had been aliened by Henry VIII., was part of the policy of his next popish successor to the crown; and therefore by the statute 1 & 2 Philip & Mary,c. 8, ss.51, 52(w), the statutes of mortmain, so far as related to spiritual corporations, were suspended for 20 years; and free liberty was given, during that period, to those who were seised in fee simple, in possession, reversion or remainder, in their own right, of any manors, lands, tenements, parsonages, tithes, portions, pensions, or other hereditaments, not being copyhold, to convey them by feoffment, grant, or any other assurance, or to bequeath them by last will and testament in writing, to any spiritual body politic or corporate, then erected or founded, or thereafter to be erected or founded, without any license in mortmain, or writ ad quod damnum.

1. Foundation of hospitals.] In consequence of the dis(v) The exemptions from the stat. (w) See Dyer, 255 b.; 1 Roll, R. 9 Geo. II. c. 36, will be considered 166, 418. in the next Chapter.

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