This subject will receive further light by the enquiry in a subsequent chapter upon the king's right of presentation on account of simony and lapse.

Advowsons granted to corpor

ations, universities,

and colleges.

Restriction

SECTION VII.

On the Effect of the Statutes of Mortmain upon Conveyances of Advowsons and Avoidances.

As advowsons are frequently granted to corporations, particularly spiritual ones, and to the universities or colleges; it is necessary to consider in what manner such grants are affected by the statutes of mortmain.

Before the conquest it was necessary to obtain of mortmain the king's leave to enable corporations to take a by statutes. purchase, but nevertheless, alienations from superstitious motives, although discountenanced by William the Conqueror, became so frequent that there was an article in the great charter forbidding them, which clause was explained and confirmed by 7 Edw. I. stat. 2. c. 1. de religionis, commonly called the statute of mortmain. The mode of avoiding this statute by means of recoveries was restrained by 13 Edw. 1. stat. 1. c. 33. The statute of quia emptores, (18 Edw. I. c. 3.) made to facilitate the general power of alienation, expressly provided against its enactments being construed to authorise alienations in mort

pre

main. The licence of the king was to be ceded by a writ of ad quod damnum, by 27 Edw.I. stat. 2., and by the assent of the mesne lords, under their hands and seals, by statute 34 Edw. I. stat. 3. The statute 18 Edw. III. stat. 3. c. 3. guarantees corporations in the possession of lands which they have taken by virtue of the king's licence, on paying a fine, if the writ of ad quod damnum had not been sued out.

The practice of evading these statutes by the Doctrine of Uses was controuled by statute 15 Rich. II. c. 5. and by the Statutes of Wills, devises to corporations are expressly excepted. The 1 & 2 Phil. & Mary, stat. 4. c. 8. s. 51. repealed all the mortmain acts for twenty years, but was itself repealed by statute 1 Eliz. These statutes are dispensed with in some particular cases by a few statutes of limited operation, as 39 Eliz. c. 5. 13 & 14 Car. II. c. 12. 17 Car. II. c. 3. 2 & 3 Anne, c. 11. s. 4. 9 Geo. 2. c. 36. (1)

The process of procuring licences in mortmain of licences seems originally to have been to apply for leave in mortmain. to the king to sue out a suit of ad quod damnum, and if the inquest was in favour of the alienation, letters patent of licence from the king and immediate lords, were obtained. In process of time, by the gradual declension of the rights of

() Vid. Highmore's Hist. of Mortmain.

At the revolution a power of licensing given the king.

seignorage, owing to the operation of the statute of quia emptores, and the introduction of uses and trusts into wills, and finally by the abolition of feudal tenures in the time of Car. II. the interests of mesne lords became of so little importance, that the king's licence to alienate in mortmain, was considered in the light of a peculiar privilege, and indeed it seems to have been treated so as early as the passing the statute 10 Edw. III. stat. 3.

Although this proceeding was originally the remission of a forfeiture, and this right of the king was at length considered a part of the dispensing power of the crown, and hence licences usually contained a clause of non obstante, the statute of mortmain, and also of quia emptores; it was afterwards thought sufficient to insert this clause without suing out a writ of ad quod damnum.

The dispensing power having been declared illegal at the revolution, a power was expressly given to the king by 7 & 8 Will. III. c. 37. to authorize alienators in mortmain by his licence, and since that statute it has not been the practice to take out a writ of ad quod damnum. (1)

(*) 1 Inst. 99. a. n. 1. 3 Inst. 202. 1 Wood. Vin. Lect. 494. Fitz. N. B. 221, 222.

Hence, then, at the time of the revolution, every alienation to a corporate body, with a few exceptions, must have been accompanied by the king's licence to alien in mortmain, and such licence is by the law as settled at the revolution still requisite for that purpose.

A very extensive class of alienations was, how ever, taken out of the influence of the statutes of mortmain, by means of the statute of Eliz., by virtue of which alienations to corporate bodies, as well by deed as by will, (for in this case an indirect power of devising to corporations was conferred,) were sustained, provided the alienation was in support of charitable uses, and devises to the universities and colleges were held to be such charitable uses. But this exemption from the statutes of mortmain has been again restrained by another statute, 9 Geo. II. c. 36. made to restrain gifts and devises to charitable uses in general, and therefore inclusively gifts and devises to corporations for charitable uses. The universities were excepted out of the operation of this statute, subject to a restriction imposed upon them respecting the number of advowsons which a college might hold; but this restriction in the fifth section of the act has been repealed by the 45 Geo. III. c. 101., wherein it is stated that the said restriction was found by experience to operate to the prejudice of houses of learning, and that its removal will

tend to the providing a better supply of fit and competent parochial ministers.

As the law at present stands, a gift or devise to a corporation, excepting it were under the statutes of limited operation before adverted to, would not be supported, unless it was made with the king's licence. If, however, it be a gift to a corporation for charitable uses, it would be good by the statute of Elizabeth without the king's licence, provided it be done with the formalities required by 9 Geo. II. If it be a devise to a corporation for charitable uses, although it would be good without the king's licence by the statute of Elizabeth, yet it shall be void by 9 Geo. II. If it be to the universities, and therefore for charitable uses, it will be good either by gift or devise, though without a licence, through the operation of the statute of Elizabeth, and because it is excepted out of the statute 9 Geo. II.