« EdellinenJatka »
cause of forfeiture.
3. Alienation by particular tenan's, granting estates larger
feiture to the crown of the land so alienated; not only on account of his incapacity to hold them (9), 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 (†).
3. Lastly, alienations by particular tenants, when they are greater than the law entitles them to make, and devest the remainder or reversion (u) (10), 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
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
(s) See pag. 249, 250.
(t) Book i. pag. 372.
(9) See ante, p. 131.
(10) See ante, pp. 153. 171, and
(u) Co. Litt. 251.
(v) Litt. s. 415.
note (12) at the foot of the last cited page.
also with respect to all tenants of the mere freehold or of chattel interests; but if tenant in tail alienes (11) in fee, this 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 tenants, 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 available 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 created.
Equivalent, both in its nature and its consequences, to an Disclaimer of illegal alienation by the particular tenant, is the civil crime tenure a forof 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 forfeiture of the lands to the lord (2), upon reasons most apparently feodal. And so likewise, if in any court of record the *particular tenant does any act which amounts to a virtual [ 276 ] 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
(w) See book iii. c. 10. (x) Litt. s. 595-597. (y) Co. Litt. 233.
(*) Finch, 270, 271.
(a) Co. Litt. 252.
(11) The alienation must be by feoffment, or by matter of record, otherwise it will not even work a discontinu
ance of the estate-tail. (Litt. sections
III. By lapse-
a forfeiture occasioned by the neglect of the patron to present to a vacant church.
The title to present by lapse accrues after six
like (6); such behaviour amounts to a forfeiture of his particular estate.
III. Lapse (12) is a species of forfeiture, whereby the right of presentation to a church accrues to the ordinary by neglect 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 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 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) †.
The term, in which the title to present by lapse accrues from the one to the other successively, is six calendar months' default months (i), (following in this case the computation of the church, and not the usual one of the common law,) and this
in the patron.
exclusive of the day of the avoidance (k).
But, if the bishop be both patron and ordinary, he shall not have a double time allowed him to collate in (); 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 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
(k) 2 Inst. 361.
(1) Gibs. Cod. 769. (m) 2 Inst. 273.
(n) 2 Roll. Abr. 368.
(0) Dr. & St. d. 2, c. 36. Cro. Car.
If the benefice
become void by
death or cession, the patron is bound to take notice of the vacancy; but, if by resignation
bishop must give him notice.
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).
*In case the benefice becomes void by death, or cession through plurality of benefices, there the patron is bound to take notice of the vacancy at his own peril; for these are matters of equal notoriety to the patron and ordinary: but in case of a vacancy by resignation, or canonical deprivaor canonical de- tion, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is presumed to be cognizant, here the law requires him to give notice thereof to the patron; otherwise he can take no advantage by way of lapse (q) †. Neither shall any lapse thereby accrue to the metropolitan or to the king; for it is universally true, that neither the archbishop or the king shall ever present by lapse, but where the immediate ordinary might have collated by lapse, within the six months, and hath exceeded his time: for the first step or beginning faileth, et quod non habet principium, non habet finem (r). If the bishop refuse or neglect to examine and admit the patron's clerk, without good reason assigned or notice given, he is styled a disturber by the law, and shall not have any title to present by lapse; for no man shall take advantage of his own wrong (s). Also, if the right of presentation be litigious or contested, and an action be brought against the bishop to try the title, no lapse shall incur till the question of right be decided (t).
IV. By simony
IV. By simony, the right of presentation (13) to a living the right of pre- is forfeited and vested pro hac vice in the crown. Simony
sentation is for