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18 Edw. 3. st. 3. c. 3. E. & L.

Right of the king to grant licenses recog

nized.

7 & 8 W. 3. c.37. Eng.

32 Geo. 3. c. 31. Ir.

with the inquisition; and also except the writ made mention of every thing according to the new ordinance. And this right of the king to grant such licenses was further declared by the 18 Edw. 3. st. 3. c. 3. E. & I. which enacted, that if prelates, clerks beneficed, or religious people, which have purchased lands and the same have put to mortmain, be impeached, and they shew a charter of license, and process thereupon made by inquest of ad quod damnum, or by grace or fine, they shall be let in peace; and if they cannot shew that they have entered by due process, they shall be received to make reasonable fine. And the 7 & 8 W. 3. c. 37. Eng. further declares or enacts, that it shall be lawful for the king to grant to any person, or body corporate, their heirs and successors, license to alien in mortmain, and to purchase and hold in mortmain, in perpetuity or otherwise, any lands, &c.: and by s. 2. lands so aliened or acquired, shall not be subject to forfeiture. This statute has been followed by a corresponding act in Ireland-32 Geo. 3. c. 31. Ir. But the 9 Geo. 2. c. 36. Eng. provides that no manors, lands, advowsons, or other hereditaments, nor any money or other personal estate to be laid out in the purchase of Dispositions of landi, &c., for lands, &c., shall be any ways conveyed or settled to any when and how person, or bodies corporate, or otherwise, or any ways charged in trust for charitable uses, unless such gift, conveyance, &c., (other than stocks in the public funds) be made by deed indented, sealed and delivered in presence of 2 witnesses, 12 calendar months before the death of such donor, (including the days of the execution and death) and be inrolled in chancery within 6 calendar months after execution; and unless such stocks be transferred 6 calendar months before the death of such donor; (including the days of the transfer and death) and unless the same be made to take effect in possession immediately from the making, and be without power of revocation. But by s. 2. nothing herein relating to the sealing and delivering of any deed, 12 calendar months before the death of the grantor, or to the transfer of stock, 6 calendar months before the death of the grantor, shall extend to any purchase for a full and

9 Geo. 2. c. 36. Eng.

charitable uses,

to be made.

* 2.

valuable

s. 3.

8. 4.

$. 6.

valuable consideration, actually paid before the making of such conveyance or transfer. By s. 3. all gifts, conveyances, &c. of lands, &c. or of any charge affecting lands, or of any stock or personal estate to be laid out in the purchase of lands, &c. or of any estate or interest therein, or of any incumbrances affecting the same, for charitable uses, which shall be made in any other manner, shall be void. But by s. 4. this act shall not make void dispositions of any lands, &c., to either of the universities, or the colleges or houses within either of them, or to the colleges of Eton, Winchester, or Westminster, for the better support of the scholars upon the foundation. Nor by s. 6. shall this act extend to Scotland. And so much of this act as restrained the colleges in said universities from purchasing, or holding advowsons, has been repealed by the 45 Geo. 3. c. 101. E. No statute has been passed 45 Gen. 3. in Ireland corresponding, or similar to the 9 Geo. 2. c. 101. E. c. 36. Eng. The statutes of mortmain were suspended in Ireland for 20 years in favour of spiritual corporations, by the 3 & 4 Ph. & M. c. 8. Ir. in like manner as in England by the 1 & 2 Ph. & M. c. 8. Eng. And they have been also dispensed with by several acts passed in both countries, for encouraging the augmentation of poor livings, and other such purposes.

:

months shall not

17 Edw. 2.

E. & I.

II. The exemption from forfeiture by lapse, where the $2. right of presentation to a church is in the crown, is de- Lapse of 6 clared by the 17 Edw. 2. st. 1. c. 8. E. & I. which en- prejudice the acts, that of churches vacant, the advowsons whereof be-king. long to the king, and to which others present, if the king st. 1. c. s. recover his presentation, though after 6 months from avoidance, no time shall prejudice him, so that he present within 6 months. As to the principle of law which 1 Geo. 1. st. 2. exempts donatives from lapsing to the ordinary, the 29 29 Geo. 2. Geo. 2. c. 18. Ir. has made an exception, in like man- c. 18. Ir. ner as the 1 Geo. 1. st. 2. c. 10. Eng. these acts having Certain donaprovided that donatives augmented by the trustees of first lives lapse to the fruits shall be subject to lapse to the ordinary, as in case of presentative livings.

III. For avoiding of simony it is enacted by the 31 Eliz. c. 6. s. 5. Eng. that if any person, or body corporate, shall for any sum of money, reward, gift, profit or

benefit,

c. 10. Eng.

ordinary.

§ 3.

Simoniacal pre

sentations and contracts void.

3} Eliz. c. 6. s. 5. Eng.

8.7.

benefit, directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurance of or for any sum of money, &c., directly or indirectly, present or collate any person to any benefice with cure of souls, dignity, prebend, or living ecclesiastical, or give or bestow the same for or in respect of any such corrupt consideration; every such presentation, collation, or gift, and every admission, institution, investiture, and induction thereupon shall be void; and it shall be lawful for the crown to present, or collate unto, or give such benefice, &c., for that turn only. Provided (s. 7.) that no title to confer or present by lapse shall accrue upon any voidance mentioned in this act, but after 6 months next after notice given of such voidance by the ordinary to the patron. This statute also punishes the offence of simony in a criminal way, but these clauses are reserved for another place. But it is provided by the 1 W. & M. st. 1. c. 16. Eng. that after the death of the person so simoniacally promoted, the offence or contract of simony shall, neither by way of title in pleading, or in evidence to a jury, or otherwise, be alleged or pleaded to the prejudice of any other patron innocent of simony, or of his clerk by him presented or promoted, upon pretence of lapse to the crown, metropolitan, or otherwise, unless the person simoniacally presented, or his patron, was convicted of such offence at the common law, or some ecclesiastical court, in the life-time of such simoniack person. And by s. 3. no lease really and bona fide made, by any such person simoniacally promoted to any deanery, prebend, or parsonage, or other ecclesiastical benefice or simonist good, dignity, for good and valuable consideration, to any per

1 W. & M. st. 1. c. 16.

Eng.

Simoniacal con

tract where it

shall not preju

dice.

3 3.

Lease made bona fide by

12 Ann. st. 2. c. 12. Eng.

son not being privy to or having notice of such simony, shall be impeached or avoided by reason of such simony. It is further enacted by the 12 Ann. st. 2. c. 12. Eng. that if any person shall for any sum of money, reward, gift, profit or advantage, directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurance, in his own name, or in the name of any other person, take, procure, or accept the next avoidance of, or presentation to any benefice with

cure

cure of souls, dignity, prebend, or living ecclesiastical, and shall be presented or collated thereupon, every such presentation, &c., and every admission, institution, investiture, and induction upon the same, shall be void; and such agreement shall be deemed to be a simoniacal contract; and it shall be lawful for the crown to present or collate unto, or give such benefice, &c., for that turn only; and the person so corruptly taking such benefice &c., shall be disabled to hold such benefice, &c., and shall be subject to any penalties inflicted by the laws ccclesiastical, as if such corrupt agreement had been made after such benefice, &c. had become vacant. No statute in Ireland has restrained the offence of simony, either by eivil forfeitures, or otherwise in this country therefore it is only punishable by ecclesiastical censures.

With respect to forfeiture by waste-the statutes which respect the remedies for redress of this injury of waste, seem more properly to belong to the next part of this digest. And as to forfeiture by bankruptcy, the statutes which relate to it will be found in a subsequent chapter.

CHAP. XII.

Of Title by Alienation.

By the statute quia emptores terrarum 18 Edw. 1. st. 1.

c. 1. E. & I. it shall be lawful for every freeman to sell

his lands, or part of them, so that the feoffee shall hold the same of the chief lord of the fee, by such service and customs as his feoffee held. And by c. 2. if he sell any part of such lands, the feoffee shall hold it of the chief lord, and shall be charged with the services for so much as pertaineth to the chief lord for the same parcel, according

VOL. I.

2 L

[blocks in formation]

c. 3.

And not to be in mortmain.

Conveyances 2 ood without attornment.

s. 9. & 10.

Eng.

6 Aun. c. 10.

cording to the quantity of the land sold; and the same part of the service shall remain to the lord, to be taken by the hands of the feoffee, for which he ought to be attendant to the same chief lord, for the parcel of the service so due. But by c. 3. it is to be understood that by said sales, such lands or tenements shall in no wise come into mortmain, either in part or in the whole, contrary to the 7 Edw. 1.: and that this statute extendeth only to lands holden in fee simple. But so much of this statute as related to feodal services, as also the 1 Edw. 3. c. 12. E. & I. which further permitted the king's tenants in capite to alien upou payment of a reasonable fine to the king, are rendered obsolete by the 12 Car. 2. c. 24. Eng. and 14 & 15 Car. 2. c. 19. Ir. which abolished the tenure in capite, and all fines for alienation as incident thereto.

The feodal obligation which restrained the lord from alienating his seignory without the consent of his tenant, 4 m. c. 16. and which consent of the vassal was called attorument, has been also done away by the 4 Ann. c. 16. s. 9. & 10. s. 9. & 10. Ir. Eng. which enacts that all grants or conveyances, by fine or otherwise, of manors or rents, or of the reversion or remainder of any messuages or lands, shall be good and effectual to all intents, without any attornment of the tenants of such manors, or of the land out of which such rent shall be issuing, or of the particular tenants upon whose particular estates any such reversions, &c., shall be expectant or depending: provided that no such tenant shall be prejudiced by payment of any rent to any such grantor or conusor, or by breach of any condition for non-payment of rent, before notice shall be given to him of such grant by the conusee or grantee. To which the 6 Ann. c. 10. Ir. contains corresponding provisions. And the 15 Geo. 2. c. 8. s. 7. & 8. Ir. in like manner as the 11 Geo. 2. c. 19. s. 11. Eng. provides, that all fraudulent attornments of tenants, to strangers claiming title to the estates of their respective landlords or lessors, shall denants to stran- be void, and the possession of such landlords, &c.. not affected thereby provided that nothing herein shall vacate or affect any attornment made pursuant to some judgment

11 Geo. 2. e. 19. s. 11. Eng.

15 Geo. 2. c. 8. s. 7. & 8. h.

Atiornment of

gers void.

Zacej tions.

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