PART II.

CLASS V.

Mortmain and Charitable Uses.

[ No. I. ] 9 Henry III. (Magna Charta,) c. 36.—No

IT

Land shall be given in Mortmain.

shall not be lawful from henceforth to any to give his lands to any 9 H. III. c. 36. religious house, and to take the same land again to hold of the same

3.

house. Nor shall it be lawful to any house of religion to take the lands Fitz. Mortm. 1. <of any, and to lease the same to him of whom he received it. If any Bro. Mortm.36. 'from henceforth give his lands to any religious house and thereupon be 2 Inst. 74. convict, the gift shall be utterly void, and the land shall accrue to the Wood's Inst.

Lord of the fee.'

301.

Enforced and amended by 7 Ed. 1, st. 2. 13 Ed. 1, st. 1, c. 32.

[ No. II. ] 7 Edward I. stat. 2, c. 1.-Who shall take the Forfeiture of Lands given in Mortmain.

c. 1. 9 Hen. 3. stat. 1, c. 36. 1 Roll. 154, 157, 457.

47 Ed. 3, 11. Bro. Mortmain, 15, 16, 18, 20, 24, 27, 31, 38, 39, 41, 43.

THE King to the Justices of his bench greeting, where of late it was 7 Ed. 1. st. 2, provided, That religious men should not enter into the fees of any "without licence and will of the chief Lord of whom such fees be holden "immediately; and notwithstanding such religious men have entered as "well into their own fees as into the fees of other men, approprying and "buying them, and sometime receiving them of the gift of others, whereby "the services that are due of such fees, and which at the beginning were 2 Roll. 170. "provided for defence of the realm, are wrongfully withdrawn, and the 9 H. 3, stat. "chief Lords do lease their eschetes of the same:"We therefore to the 1 & 2, c. 36. profit of our realm intending to provide convenient remedy, by the ad- 8 H. 4, 15. <vice of our prelates earls and other liege men of our kingdom being of 41 Ed.3,16,21. ' our council, have provided made and ordained, That no person religious ❝ or other whatsoever he be, that will buy or sell any lands or tenements, or under the colour of gift or lease, or that will receive by reason of any ' other title whatsoever it be lands or tenements, or by any other craft or engine will presume to appropre to himself under pain of forfeiture of 50 Ed. 3, 22. the same, whereby such lands or tenements may any wise come into 'mortmain. We have provided also, That if any person religious or 13 Co. Lit. 2. b. Fitz Mortmain, other, do presume either by craft or engine to offend against this statute, 15 Ed. 4, 13. it shall be lawful to us and other chief Lords of the fee immediate, to Fitz. Formeenter into the land so aliened within a year from the time of the don, 57. 'alienation, and to hold it in fee as an inheritance. And if the chief Fitz. Quare, 'Lord immediate be negligent, and will not enter into such fee within imp. 163. the year, then it shall be lawful to the next chief Lord immediate of the same fee to enter into the same land within half a year next following, be aliened in and to hold it as before is said; and so every Lord immediate may enter Mortmain upon into such land, if the next Lord be negligent in entering into the same pain of the for'fee as is aforesaid. And if all the chief Lords of such fees, being of full feiture thereof. age within the four seas and out of prison, be negligent or slack in this 2 Bulstr. 187. 'behalf for one whole year, we, immediately after the year accomplished 3 Bulstr. 45. from the time that such purchases gifts or appropriations hap to be Who shall re'made, shall take such lands and tenements into our hand, and shall ceive the bene ⚫infeoff other therein by certain services to be done to us for the defence fit of the For' of our realm; saving to the chief Lords of the same fees their wards and feiture.

No Land shall

No. II.

7 Ed. I.

st. 2, c. 1.

'eschetes, and other services thereunto due and accustomed. And there'fore we command you, that ye cause the foresaid statute to be read be'fore you, and from henceforth to be kept firmly and observed. Witness myself at Westminster the fifteenth day of November, the seventh year ' of our reign.'

Enforced and amended by 13 Ed. 1, st. 1, c. 32. 18 Ed. 3, st. 3, c. 3. 34 Ed. 1, st. 3.

13 Ed. I. st. 1, « c. 32.

2 Inst. 428.

10 H. 7, f. 3.

66

[ No. III. ] 13 Edward I. st. 1, c. 32.-Mortmain by Recovery of Land by Default.

WHEN religious men and other ecclesiastical persons do implead any, and the party impleaded maketh default, whereby he ought 7 Ed. 1, stat. 2. to leese the land, forasmuch as the Justices have thought hitherto, "that if the party impleaded make default by collusion, that where the "demandant, by occasion of the statute, could not obtain seisin of the "land by title of gift or other alienation, he shall now by reason of the Fitz. Col. 1,2," default, and so the statute is defrauded;" it is ordained by our Lord 4,5,6,7, 9, 10, the King and granted, That in this case after the default made, it shall 11, 22, 24, 25, be inquired by the country whether the demandant had right in the 26, 27,31, 40, thing demanded or no. And if it be found that the demandant had 42, 46. right in his demand, the judgment shall pass with him, and he shall recover seisin; and if he hath no right, the land shall accrue to the next 'Lord of the fee, if he demand it within a year from the time of the Inquest taken; and if he do not demand it within the year, it shall accrue to the next Lord above, if he do demand it within half a year after the 'same year; and so every Lord after the next Lord shall have the space of half a year to demand it successively until it come to the King, to 'whom at length through default of other Lords the land shall accrue. And to challenge the Jurors of the Inquest, every of the chief Lords of the fees shall be admitted, and likewise for the King they that will 'shall challenge; and after the judgment given, the land shall remain clear in the King's hands, until it be dereigned by the demandant or 9 H. 3, stat. 3, some other chief Lord, and the Sheriff shall be charged to answer €. 36. 'therefore at the Exchequer.'

11 Ed. 3, st. 3, c. 3.

Every chief

Lord may chal-
lenge the
Jurors.

[No. IV. ] 13 Edward I. st. 1. c. 33.-Lands where Crosses be set, shall be forfeited as Lands aliened in Mortmain. FORASMUCH as many tenants set up crosses, or cause to be set

13 Ed. I. st. 1. a C. 33.

2 Inst. 431.

34 Ed. 1. st. 3.

9 H. 3, st. 1, c. 36.

7 Ed. 1, st. 2. 13 Ed 1, st. 1, c. 32.

up in their lands, in prejudice of their Lords, that tenants should "defend themselves against the chief Lords of the fee by the privi "leges of templars and hospitalers;" it is ordained, That such lands 'shall be forfeit to the chief Lords, or to the King, in the same manner 'as is provided for lands aliened in Mortmain.'

[No. V. ] 34 Edward I. st. 3.-That Lands shall not be aliened in Mortmain, where there be Mesnes, without their Consent.

TOUCHING the King's grant to be made upon Inquests returned into the Chancery for lands to be aliened into Mortmain, the 'King commandeth that nothing shall be done (where there be any Lords 'mean) except the religious persons can shew to our Lord the King their assent under their patents sealed with their seals; and that nothing 'shall pass in case where the donor reserveth nothing to himself. And Ordin. de liber-likewise where Inquisitions be made and returned without warrant, tat. perquir. 'that is to wit, the writ original returned with the Inquest, and likewise 'unless the writ original make mention of every thing, according to the 'new ordinance devised by the King.' (1)

27 Ed. 1.

(1) See 7 & 8 W. III. c. 37, post No. 10.

[ No. VI. ] 18 Edward II. st. 3, c. 3.-Prelates impeached for purchasing Lands in Mortmain.

No. VI.

18 Ed. III.

st. 3, c. 3.

ITEM, If prelates clerks beneficed or religious people which have purchased lands, and the same have put to mortmain, be im'peached upon the same before our Justices, and they shew our charter 18 Ed. III. of licence and process thereupon made by an Inquest of Ad quod st. 3, c.3. damnum, or of our grace or by fine, they shall be freely let in peace, 'without being further impeached for the same purchase. And in case they cannot suthciently shew that they have entered by due process 'after licence to them granted in general or in special, that they shall be 'well received to make a convenient fine for the same; and that the en'quiry of this article shall wholly cease according to the accord comprised in this parliament."

[No. VII. ] 15 Richard II. c. 5.-Assurance of Lands to certain Places Persons and Uses, shall be adjudged Mortmain.

7 Ed. 1, st. 2.

18 Ed. 1, st. 1,

c. 3.
1 Ed. 3, st. 2,

12.

ITEM, Whereas it is contained in the statute De Religiosis, That no 15 Richard II. religious nor other whatsoever he be, do buy or sell or under colour

c. 5.

"of gift or term, or any other manner of title whatsoever, receive of any 7 Ed. I. st. 2. 66 man, or in any manner by gift or engine cause to be appropriated unto "him any lands or tenements upon pain of forfeiture of the same, "whereby the said lands and tenements in any manner might come to "Mortmain. And if any religious, or any other, do against the said It is within the "statute by art or engine in any manner, that it be lawful to the King compass of the " and to other Lords upon the said lands and tenements to enter, as in Statute of "the said statute doth more fully appear. And now of late by subtile Mortmain to "imagination and by art and engine, some religious persons parsons vicars convert any "and other spiritual persons, have entered in divers lands and tenements land to a "which be adjoining to their churches, and of the same by sufferance Church-yard. "and assent of the tenants have made church-yards, and by bulls of the "Bishop of Rome have dedicated and hallowed the same, and in them "do make continually parochial burying, without licence of the King and "of the chief Lords:" therefore it is declared in this Parliament, That

6

it is manifestly within the compass of the said statute. And moreover Mortmain it is agreed and assented, That all they that be possessed by feoffinent, where some be ' or by other manner to the use of religious people or other spiritual per- seised of lands sons, of lands and tenements fees advowsons, or any manner other pos- to the use of 'sessions whatsoever, to amortise them, and whereof the said religious religious or and spiritual persons take the profits, that betwixt this and the feast of spiritual perSt. Michael next coming they shall cause them to be amortised by the sons. licence of the King and of the Lords, or else that they shall sell and 'aliene them to some other use between this and the said feast upon pain to be forfeited to the King and to the Lords, according to the form of 'the said statute of religious, as lands purchased by religious people: And that from henceforth no such purchase be made, so that such religious or other spiritual persons take thereof the profits as afore is said, upon 'pain aforesaid. And that the same statute extend and be observed of Mortmain to ⚫ all lands tenements fees advowsons and other possessions purchased or purchase lands to be purchased to the use of gilds or fraternities. And moreover it is to gilds frater'assented, because mayors bailiffs and commons of cities boroughs and nities offices ⚫ other towns which have a perpetual commonalty, and others which have commonalties. offices perpetual, be as perpetual as people of religion, that from henceforth they shall not purchase to them and to their commons or office,

upon pain contained in the said statute De Religiosis. And whereas Mortmain in others be possessed or hereafter shall purchase to their use, and they respect of takthereof take the profits, it shall be done in like manner as is aforesaid ing of lands is • of people of religion.'

No. VIII. [No. VIII. ] 23 Henry VIII. c. 10.-An Act for Feoff23 H. VIII. ments and Assurances of Lands and Tenements made to the Use of any Parish Church Chapel or such like.* WHERE by reason of feoffments fines recoveries and other estates

c. 10.

D. 23 Hen. VIII.

c. 10.

Assurances of Lands to Churches Chapels, &c. shall be void. Cro. El. 288. 11 Co. 71.

Proviso for assurances of Lands to churches, &c. for 20 years.

Collateral as

surances in defrauding of the Statute shall be

void.

and assurances made of trusts of manors lands tenements and hereditaments, to the use of parish churches chapels church-wardens 'guilds fraternities commonalties companies or brotherheads erected ' and made of devotion, or by common assent of the people, without any 'corporation, and also by reason of feoffments fines recoveries wills and other acts made to any uses aforesaid, or to the uses and intents to have obites perpetual or a continual service of a priest for ever, or 'for threescore or fourscore years, founden of the issues and profits of ⚫ the manors lands tenements and hereditaments, whereof such feoff'ments fines recoveries wills and other acts been made, or that the 'feoffees conisees recoverers or other persons and their heirs thereof 'seised shall take levy receive and perceive, or cause or suffer to be taken 'levied and perceived, the issues revenues and profits thereof, and the same to dispose pay convert or otherwise employ or suffer, or cause to 'be disposed paid converted or employed to any such uses intents or purposes as above specified, or to any other like uses and intents; there 'groweth and issueth to the King our Sovereign Lord, and to other lords and subjects of the realm, the same like losses and inconveniences, and is as much prejudicial to them as doth and is in case where lands 'be aliened into mortmain :'

II. Be it therefore enacted by the King our Sovereign Lord, the Lords Spiritual and Temporal and the Commons in this present Parliament assembled, and by the authority of the same, That all and every such uses intents and purposes of what name nature or quality they shall be called, that shall be devised covenanted made declared or in any wise ordained after the first day of March, in the three and twentieth year of the reign of our Sovereign Lord King HENRY the Eighth, by any feoffee recoverer or conisee, or by any other person or persons to whose use any such feoffee recoverer or conisee shall be seised of any manors lands tenements or hereditaments, or of the issues revenues and profits of them or any of them, shall be utterly void, and of no strength virtue nor effect in the law.

III. Provided alway, That it shall be lawful to every person being seised of any manors lands tenements or hereditaments to his own proper use, or having feoffees recoverors or conisees to his use, to make ordain or devise, or cause to be made ordained or devised, any of the uses intents and purposes above specified, in such manner as they might have done before the making of this Act, and as if this Act had never been had ne made; so that no such uses intents or purposes to be so made ordained or devised after the said first day of March, be not in any wise made ordained devised or appointed to endure continue or abide, by any craft colour terms sentences clauses words or other means, above the term of twenty years next after the first making and beginning of any such uses intents or purposes.

IV. And it is further enacted, That if any person or persons in defraud of this Statute bind or ordain any their heirs or successors, or any other person or persons, that they shall suffer such uses intents and purposes to endure and continue, contrary to this Act, upon pains or penalties of losses of any other lands tenements or hereditaments, or of any other thing or things; or do, attempt or devise by any colour craft or means any thing or things to make any such uses intents or purposes to be declared, contrary to the true meaning of this Act, to continue or abide for any longer time or season than is above limited for the same; that then every such pain penalty craft colour, and every other thing and son, 4 Vesey, 433-Da Costa v. Depas, Ambl 228 Cary v. Abbott, 7 Vesey, 490.

* See the cases on this Statute, Comyn'sUses, M. See also St. 1 Ed. VI. c. 14, for churches collegiate, and Smart.v. Prujean, 567-De Garner v. Law.

things, of what kind nature or quality soever it be that shall be so made No. VIII. ordained or devised in defraud of this Act, shall be utterly void in the

c. 10.

law to all intents; and that this Statute shall be always interpreted and 23 H. VIII. expounded, as beneficially as may be, to the destruction and utter avoiding of such uses intents and purposes therein al ove remembered, and of all other like uses and intents, otherwise than only after such manner as is afore by this present Act provided.

V. Provided alway, That in such cities and towns corporate, where Customs of by their ancient customs they have good and lawful authorities to devise Cities and into mortmain the lands tenements and hereditaments within the same Towns to devise cities or towns corporate, that this Act shall not be in any wise preju- lands, saved. dicial or hurtful to any such custom.

[No. IX. ] 43 Elizabeth, c. 4.-An Act to redress the Mis-employment of Lands Goods and Stocks of Money heretofore given to certain Charitable Uses.*

WHEREAS lands tenements rents annuities profits hereditaments 43 Eliz. c. 4.

goods chattels money and stocks of money have been hereto- Commissioners fore given limited appointed and assigned, as well by the Queen's authorized to most excellent Majesty and her most noble progenitors, as by sundry enquire of misother well disposed persons; some for relief of aged impotent and poor employment of people, some for maintenance of sick and maimed soldiers and mariners, lands or goods schools of learning, free schools and scholars in universities, some for given to Hospirepair of bridges ports havens causeways churches sea-banks and tals, &c. highways, sonie for education and preferment of orphans, some for or Their orders towards relief stock or maintenance for houses of correction, some for shall be permarriages of poor maids, some for supportation aid and help of young formed. 'tradesmen handicraftsmen and persons decayed, and others for relief or 2 Inst. 707, redemption of prisoners or captives, and for aid or ease of any poor inha- Vin. V. 4-476. bitants concerning payments of fifteens setting out of soldiers and other taxes; which lands tenements rents annuities profits hereditaments goods chattels money and stocks of money, nevertheless, have not been employed according to the charitable intent of the givers and founders thereof, by reason of frauds breaches of trust and negligence in those that should pay deliver and employ the same:' For redress and remedy whereof, Be it enacted by authority of this present Parliament, That Cro. Car. 526. it shall and may be lawful to and for the Lord Chancellor or Keeper of Commissioners the Great Seal of England for the time being, and for the Chancellor of to enquire of the Duchy of Lancaster for the time being for lands within the county the gift of lands palatine of Lancaster, from time to time to award commissions under the and goods to Great Seal of England or the Seal of the county palatine, as the case shall charitable uses. require, into all or any part or parts of this realin respectively, according Four Commisto their several jurisdictions as aforesaid, to the bishop of every several sioners at the diocese and his chancellor, (in case there shall be any bishop of that least. diocese at the time of awarding of the same commissions,) and to other Hob. 136. persons of good and sound behaviour, authorizing them thereby, or any four or more of them, to enquire as well by the oaths of twelve lawful men or more of the county as by all other good and lawful ways and means, of all and singular such gifts limitations assignments and appointments aforesaid, and of the abuses breaches of trusts negligences misimployments not imploying concealing defrauding mis-converting or mis-government of any lands tenements rents annuities profits hereditaments goods chattels money or stocks of money heretofore given limited appointed or assigned, or which hereafter shall be given limited appointed or assigned, (1) to or for any the charitable and godly uses before rehearsed:

* See the doctrine which has been established in respect of this Statute, in Duke's Charitable Uses, and the Summary thereof, Comyn's Uses, n.-See also Morris v. Bishop of Durham, 10 Vesey, 540. (1) Under this Statute, an estate would pass by way of an appointment, by a mode of disposition not generally valid, as by a deed or will of VOL. I.

tenant in tail against persons in remainder.-Tay v. Slaughter, Prec. Ch. 16.-So before, Statute of 29 George II. post, by a devise of a copyhold without surrender-Attorney-General v. Andrews, 1 Vesey, 225-but not by a will since the Statute of Frauds, not duly attested.-Attorney-General . Baines, Prec. Ch. 270.

Y