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ster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons than are equal in number to one moiety of the fellows or students(1l) upon the respective foundations.

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tion, it is decided that its provisions amount of the residue. (Attorney Gedo not extend to the alienation of neral v. Hinxman, 2 Jac. & Walk. land in the West India colonies ; 277 ; Vezey v. Jamson, 1 Sim. & Stu. (Attorney General v. Stewart, 2 71 ; Grieves v. Case, 1 Ves. jun. 553.) Meriv. 161 ;) or in Scotland. (Mack- If, indeed, the legal bequest and the intosh v. Townsend, 16 Ves. 338.) illegal purpose are not so connected But, a devise of real estate situate in as to be inseparable, and the proporEngland, for charitable purposes, will tions are defined, or capable of being not be the less void because such pur- exactly calculated, in such cases the poses are to be carried into execution

bequest may be supported. (Attorney out of England. (Curtis v. Hutton, General v. Stepney, 10 Ves. 29; Waite 14 Ves. 541.)

v. Webb, 6 Mad. 71.) It has been said, that if an heir-at- Where a bequest of money to be law will confirm his ancestor's devise laid out in land is void under the Mortof land to a charity, no court will take main Act, the money never becomes it away ; for the gift becomes the act impressed with the character of land, and deed of the heir : (Attorney Ge- and no resulting trust arises in favour neral v. Graves, Ambl. 158; and see of the testator's heir-at-law. (AtPickering v. Lord Stamford, 2 Ves. torney General v. Tonner, 2 Ves. jun. jun. 584 ;) however, as an immediate 7; Chapman v. Brown, 6 Ves. 411.) gift from the heir would be good only By the statute of 43 Geo. III. c. in case it was made a year before his 137, the operation of the Mortmain death; upon the principle of the Act is so far qualified as to allow any statute, he ought to live a year after one to give, by deed enrolled, or by confirmation of the devise to give it will, any real or personal property for validity.

the augmentation of Queen Anne's When a bequest for charitable pur- bounty. poses, which, if it stood alone, would And by statute 43 Geo. III. c. 108, be valid, is coupled with and depen- persons are allowed to give, by deed, dent upon a devise void under the sta- or will, lands not exceeding five acres, tute of mortmain, the devise being the or goods and chattels not exceeding principal, and failing, the accessory 5001., for the purposes of promoting bequest must also fail. (Attorney Ge- the building or repairing of churches, neral v. Davies, 9 Ves. 543; Chapman or of houses for the residence of v. Brown, 6 Ves. 410; Attorney Ge- ministers, and of providing churchneral v. Goulding, 2 Brown, 429.) yards, or (with certain restrictions) And where an undefined portion of a glebes. If such gift exceed the prelegacy is directed by the testator to be scribed limits, it is not therefore void, applied for purposes which the policy the lord chancellor may reduce it.? of the law does not admit, the bequest The greater part of this note is ex. of the residue to a charity which the tracted from 2 Hovenden on Frauds, law sanctions, cannot take effect; for, 308-312. the illegal part of the gift being unde- (11) By the 45 Geo. IJI. c. 101, fined, it is impossible to ascertain the this part of the statute is repealed, so

an alien is a


estates larger

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2. Secondly, alienation to an alien is also a cause of for- 2. Alienation to feiture to the crown of the alienated : not only on cause of foraccount of his incapacity to hold them (12), which occasions him to be passed by in descents of land (s), but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property; as was observed in the preceding volume (t).

3. Lastly, alienations by particular tenants, when they 3. Alienation by are greater than the law entitles them to make, and devest ants, granting the remainder or reversion (u)(13), are also forfeitures to than their own. him whose right is attacked thereby. As, if tenant for his own life alienes by feoffment or fine for the life of another, or in tail, or in fee; these being estates, which either must or may last longer than his own, the creating them is not only beyond his power, and inconsistent with the nature of his interest, but is also a forfeiture of his own particular estate to him in remainder or reversion (v). For which there seem to be two reasons: First, because such alienation amounts to a renunciation of the feodal connexion and dependence; it implies a refusal to perform the due renders and services to the lord of *the fee, of which fealty is con- [ *275 ] stantly one; and it tends in its consequence to defeat and devest the remainder or reversion expectant: as therefore that is put in jeopardy by such act of the particular tenant, it is but just, that, upon discovery, the particular estate should be forfeited and taken from him, who has shewn so manifest an inclination to make an improper use of it. The other reason is, because the particular tenant, by granting a larger estate than his own, has by his own act determined and put an entire end to his own original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. The same law which is thus laid down with regard to tenants for life, holds also with respect to all tenants of the mere freehold or of chattel interests; but if tenant in tail alienes (14) in fee, this

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that these colleges may now hold any
number of advowsons.-CH.

(12) See ante, p. 131.
(13) See ante, pp. 153, 171, and

the note to the last cited page.

(14) The alienation must be by feoffment, or by matter of record, otherwise it will not even work a dis

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Disclaimer of tenure a forfeiture,

is no immediate forfeiture to the remainder-man, but a mere
discontinuance (as it is called (w)) of the estate tail, which
the issue may afterwards avoid by due course of law (x):
for he in remainder or reversion hath only a very remote
and barely possible interest therein, until the issue in tail is
extinct. But, in case of such forfeitures by particular te-
nants, all legal estates by them before created, as, if tenant
for twenty years grants a lease for fifteen, and all charges by
him lawfully made on the lands, shall be good and avail-
able in law (y). For the law will not hurt an innocent
lessee for the fault of his lessor; nor permit the lessor,
after he has granted a good and lawful estate, by his own
act, to avoid it, and defeat the interest which he himself has

Equivalent, both in its nature and its consequences, to an
illegal alienation by the particular tenant, is the civil crime
of disclaimer; as, where a tenant who holds of any lord,
neglects to render him the due services, and, upon an action
brought to recover them, disclaims to hold of his lord.
Which disclaimer of tenure in any, court of record is a for-
feiture of the lands to the lord (2), upon reasons most appa-

rently feodal. And so likewise, if in any court of record the [ * 276 ] *particular tenant does any act which amounts to a virtual

disclaimer; if he claims any greater estate than was granted
him at the first infeodation, or takes upon himself those
rights which belong only to tenants of a superior class (a);
if he affirms the reversion to be in a stranger, by accepting
his fine, attorning as his tenant, collusive pleading, and the
like (b); such behaviour amounts to a forfeiture of his par-

ticular estate.
III. By lapse- III. Lapse (15) is a species of forfeiture, whereby the right
casioned by the of presentation to a church accrues to the ordinary by neglect
neglect of the

of the patron to present, to the metropolitan by neglect of
the ordinary, and to the king by neglect of the metropolitan.
For, it being for the interest of religion, and the good of the
public, that the church should be provided with an officiating
(w) See book iii. c. 10.

(z) Finch, 270, 271.
(2) Litt. s. 595—597.

(a) Co. Litt. 252. (y) Co. Litt. 233.

(6) Ibid. 253.

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patron to present to a vacant church,

continuance of the estate-tail. (Litt.
sections 606-611.)

(15) See ante, the notes to pp. 22, 23, and Vol. III. p. 246.

minister, the law has therefore given this right of lapse, in order to quicken the patron, who might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and frustrate the pious intentions of his ancestors. This right of lapse was first established about the time (though not by the authority (c)) of the council of Lateran (d), which was in the reign of our Henry the second, when the bishops first began to exercise universally the right of institution to churches (e). And therefore, where

. there is no right of institution, there is no right of lapse: so that no (16) donative can lapse to the ordinary (f), unless it hath been augmented by the Queen's bounty (g). But no right of lapse can accrue, when the original presentation is in the crown (h)(17).

The term, in which the title to present by lapse accrues The title to prefrom the one to the other successively, is six calendar accrues after six months (i), (following in this case the computation of the in the patron. church, and not the usual one of the common law,) and this *exclusive of the day of the avoidance (k) (18). But, if the [ * 277 ] bishop be both patron and ordinary, he shall not have a double time allowed him to collate in (1); for the forfeiture accrues by law, whenever the negligence has continued six months in the same person. And also if the bishop doth not collate his own clerk immediately to the living, and the

sent by lapse

months' default


(c) 2 Roll. Abr. 336, pl. 10. (d) Bracton, l. 4, tr. 2, c. 3. (e) See pag. 23.

(f) Bro. Abr. tit. Quar. Imped.; 3 Cro. Jac. 518.

(9) Stat. 1 Geo. I. st. 2, c. 10.

(h) Stat. 17 Edw. II. c. 8 ; 2 Inst.

(i) 6 Rep. 62 ; Regist. 42.
(k) 2 Inst. 361.
(1) Gibs. Cod. 769.


(16) See ante, p. 23, n. (10).

(17) Mr. Christian observes, that if a right of lapse accrues to the bishop and he dies, or is translated before he avails himself of it, the right of presentation to the lapsed benefice does not pass to the king, like the vacant patronage of the see, but to the guardian of the spiritualties. (Gibs. 770.)"

[See the case of The Bishop of London v. The Attorney General, cited ante, p. 23, n. 11.-En.]

(18) But Sir William Grant, M. R. said, in the case of Lester v. Garland, 14 Ves. 255, that he did not find this position confirmed by the authority to which Blackstone refers : and Sir William Grant was right. See, however, the note to Vol. I. p. 463, where decisions are cited in which it has been ruled that the day in which an act was done may be excluded from computation, if its inclusion would work a forfeiture.


patron presents, though after the six months are lapsed, yet his presentation is good, and the bishop is bound to institute the patron's clerk (m). For, as the law only gives the bishop this title by lapse, to punish the patron's negligence, there is no reason that, if the bishop himself be guilty of equal or greater negligence, the patron should be deprived of his turn. If the bishop suffer the presentation to lapse to the metropolitan, the patron also has the same advantage if he presents before the archbishop has filled up the benefice; and that for the same reason. Yet the ordinary cannot, after lapse to the metropolitan, collate his own clerk to the prejudice of the archbishop (n). For he had no permanent right and interest in the advowson, as the patron hath, but merely a temporary one; which having neglected to make use of during the time, he cannot afterwards retrieve it. But if the presentation lapses to the king, prerogative here intervenes and makes a difference; and the patron shall never recover his right till the king has satisfied his turn by presentation: for nullum tempus occurrit regi (o). And therefore it may seem as if the church might continue void for ever unless the king shall be pleased to present, and a patron thereby be absolutely defeated of his advowson. But, to prevent this inconvenience, the law has lodged a power in the patron's hands of as it were compelling the king to present. For if, during the delay of the crown, the patron himself presents, and his clerk is instituted, the king indeed by presenting another may turn out the patron's clerk; or, after induction, may remove him by quare impedit: but, if he does not, and the patron's clerk dies incumbent, or is canonically deprived, the king hath lost his right, which

was only to the next or first presentation (p). [ *278 ] *In case the benefice becomes void by death, or cession If the benefice through plurality of benefices, there the patron is bound to death or cession, take notice of the vacancy at his own peril; for these are

matters of equal notoriety to the patron and ordinary: but cancy; but, it in case of a vacancy by resignation, or canonical deprivaby of canonical de. tion, or if a clerk presented be refused for insufficiency, bishop must give these being matters of which the bishop alone is presumed

become void by

the patron is bound to take

of the

him notice.

(m) 2 Inst. 273.
(n) 2 Roll. Abr. 368.
(0) Dr. & St. d. 2, c. 36 ; Cro. Car.


(°) 7 Rep. 28 ; Cro. Eliz. 44.

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