[18 Edw. III. stat. 3, c. 3. But as doubts were conceived at the time of the Revolution how far such licence was valid (r), since the king had no power to dispense with the statutes of mortmain by a clause of non obstante (s), which was the usual course, though it seems to have been unnecessary (t),-and as, by the gradual declension of mesne seigniories through the long operation of the statute of Quia emptores, the rights of immediate lords were reduced to a very small compass,—it was therefore provided by the statute 7 & 8 Will. III. c. 37, that the crown for the future, at its own discretion, may grant licences to aliene or take in mortmain, of whomsoever the tenements may be holden (u).]

Nor is this the only relaxation that has taken place in the law of mortmain; [for after the dissolution of monasteries under Henry the eighth, though the policy of the next popish successor affected to grant a security to the possessors of abbey lands, yet, in order to regain so much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were suspended for twenty years, by the statute 1 & 2 Ph. & M. c. 8; and during that time any lands or tenements were allowed to be granted to any spiritual corporation, without any licence whatsoever.] And long afterwards, under the influence of much more commendable views, it was enacted by 17 Car. II. c. 3 (x), and by many subsequent Acts-among which may be particularized 43 Geo. III. c. 108, 55 Geo. III. c. 147, 3 & 4 Vict. c. 60, 6 & 7 Vict. c. 37, s. 22, 17 & 18 Vict. c. 84, and 19 & 20 Vict. c. 104, s. 23that augmentations of poor livings may be made in such manner as therein provided, free from the restrictions of the statutes of mortmain; and upon the same principle,

(r) 2 Hawk. P. C. 391; see Co. Litt. by Harg. 99 a, n. (1).

(s) Stat. 1 W. & M. stat. 2, c. 2. (t) Co. Litt. 99 a.

(u) Since this statute "the writ of "ad quod damnum seems no longer "necessary." Coleridge's Black

VOL. I.

stone, vol. ii. p. 273, n. (2); and see Co. Litt. by Harg. 99 a, n. (1).

(x) By 1 & 2 Vict. c. 106, s. 15, the statute of 17 Car. 2, c. 3, was repealed in toto; but it is revived, so far as this subject is concerned, by 6 & 7 Vict. c. 37, s. 25.

H H

provisions have been likewise made relaxing the laws of mortmain, in favour of the governors of Queen Anne's bounty (y); and grants of land are permitted to be made to corporate bodies, for several purposes, and particularly for such as are connected with the education of the poor, and with charities in general (z).

[It has also been held (a), that the statute 23 Hen. VIII. before mentioned did not extend to any thing but superstitious uses:] and that therefore a man may give lands notwithstanding that statute, for the maintenance of a school, or the sustenance of poor people, or any other charitable uses (b). [But as it was apprehended "from recent experience," that persons on their death-beds might make "large and improvident" dispositions even for these good purposes,] to the disherison of their lawful heirs (c); it was therefore enacted by the statute 9 Geo. II. c. 36 (d), that no lands or hereditaments, or money to be laid out in the purchase thereof, shall be given or conveyed, or anyways charged or incumbered, in trust for, or for the benefit of any charitable uses whatsoever, unless by deed (e), exe

(y) 2 & 3 Ann. c. 11. As to Queen Anne's bounty, vide post, vol. 11. p. 554.

(z) Among the enactments in relaxation of the law of mortmain are 4 & 5 Vict. c. 8; 7 & 8 Vict. c. 37, as to sites for schools, &c.; 16 & 17 Vict. c. 137, s. 27, and 18 & 19 Vict. c. 124, s. 41, as to land required for a house, &c., for the purposes of any charity; 17 & 18 Vict. c. 112, as to sites for institutions to promote literature, &c. ; 22 Vict. c. 27, ss. 1, 2, as to sites for recreation grounds, &c. There is also a provision in the 25 & 26 Vict. c. 61, s. 9, enabling highway boards, constituted under that Act, to take lands without licence. And in 25 & 26 Vict. c. 89, s. 18, enabling companies, with the object of acquiring gain, registerel under that

Act, to hold lands. As to such registered companies formed for other objects, see sect. 21.

(a) Porter's case, 1 Rep. 24.

(b) As to charitable uses, see also 43 Eliz. c. 4; 52 Geo. 3, c. 101; Bac. Ab. Char. Us.

(c) As to the objects of the Act, see the remarks is Attorney-General v. Stewart, 2 Meriv. 161; Doe v. Lloyd, 5 Bing. N. C. 741.

(d) This is often, though without much propriety, called "the Mortmain Act."

(e) Under 9 Geo. 2, c. 36, such deed was required also to be indented, but by 24 & 25 Vict. c. 9, s. 1, it need now neither be indented nor purport to be indented: and in the case of assurances of land of copyhold and customary tenure, no deed is required.

cuted in the presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the Court of Chancery, within six calendar months after its execution (ƒ), and unless such gift be made to take effect immediately, and be without power of revocation, or other clause or covenant for the benefit of the donor, or those claiming under him (g). But by 24 & 25 Vict. c. 9, (amended by 25 & 26 Vict. c. 17,) this last restriction is so far qualified that there may now be, in any deed or assurance for charitable uses made after the 17th May, 1861, such clause or covenant, if it consist of a grant or reservation of a nominal rent, or of mines, minerals or easements; or of provisions as to buildings, roads, and the like, for the better enjoyment as well of the property granted as of adjacent property; or as to re-entry on breach of such covenant, or other stipulation of the like nature,―provided that the donor shall, in such cases, reserve for his representatives the same benefits as for himself.

Where any conveyance is made contrary to the provisions of 9 Geo. II. c. 36, not only is the charitable use inoperative, but the conveyance itself is void to all intents and purposes (h). Its provisions, however, are subject to partial exception in the case of stock in the public funds to be laid out in the purchase of lands, tenements or hereditaments, on charitable uses; as to which, instead of a deed, executed twelve months before the donor's death, it is required that the transfer in the bank books should be made six calendar months at least before his death. There is also an exception, in the case of conveyances to charitable uses by way of bonâ fide purchase, and where a

(f) By 25 & 26 Vict. c. 17, past deeds, otherwise valid, but not hitherto enrolled, may be protected by enrolling them previously to the 17th May, 1864.

(g) See, however, 22 Vict. c. 27, as to land conveyed to trustees

for public recreation or play-ground. There is also a provision (23 & 24 Vict. c. 134, s. 3) protecting certain Roman Catholic charities not enrolled at the date of that Act.

(h) Doe v. Wrighte, 2 Barn. & Ald. 710.

full valuable consideration is paid down at the time, or is reserved by way of annual payment; for such purchases will be valid, notwithstanding the death of the vendor within twelve months after the execution of the deed (i). The universities of Cambridge and Oxford, their colleges, and the scholars on the foundations of Eton, Winchester, and Westminster, are also entirely exempted from the operation of the Acts (j).

2. Alienations by particular tenants, when they conveyed by a common law conveyance, such as feoffment, fine, or recovery, a greater estate than the law entitled them to make, were, at common law, forfeitures to the person in immediate remainder or reversion (k). As if tenant for his own life aliened by feoffment 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 was not only beyond his power, and inconsistent with the nature of his interest, but was also a forfeiture of his own particular estate, to him in remainder or reversion, who was entitled to enter immediately (l). For which the reason seems to be, that the tenant, by thus taking upon himself to assert a more extensive right than he derived from the lord of the fee, violated the feudal compact (which bound him to fidelity), and consequently no longer

251 a.) But where the reversion or remainder is in the crown, it is not divested, and yet a forfeiture equally accrued. (Co. Litt. 251 b.) So the levying of a fine in fee, by the particular tenant, of a thing lying in grant, used to work a forfeiture; and yet it did not divest the remainder or reversion; ibid. And see Podger's case, 9 Rep. 106 b.

(1) Blackstone (vol. ii. p. 274) cites Litt. s. 415.

deserved to retain its benefit (m). He had therefore by his own act determined, and put an entire end to, his own original interest; and, on such determination, the next taker was entitled to enter regularly, as in his remainder or reversion (n). The same law which is thus laid down with regard to tenants for life, held also with respect to lessees and other tenants of mere chattel interests; but if tenant in tail aliened in fee, this was no immediate forfeiture to the remainder-man, but a mere discontinuance, as it was called (0), of the estate-tail, which the issue might afterwards avoid by one of the class of actions called real; or, after the abolition of real actions, simply by entry (p): [for he in remainder or reversion hath only a very remote and barely possible interest therein, until the issue in tail is extinct.] This kind of forfeiture, viz. by alienation contrary to law, differed materially, it is to be observed, from forfeiture by breach of condition in deed, to which we had occasion to refer in a former chapter (q); for in that case the reversioner is in as of his former seisin; and consequently not only the estate of the tenant himself, but all interests derived out of it (even though derived before the forfeiture) are defeated (r): but in case of such forfeitures by particular tenants, all legal estates by them before created, (as if tenant for twenty years granted a lease for fifteen,) and all charges by them lawfully made

(p) A discontinuance formerly took away the right of entry, and put the issue, and those in reversion and remainder, to the necessity of bringing a real action. (Litt. ss. 595,596, 597; Doe v. Finch, 1 Nev. & M. 130.) But now, by the 39th sect. of the 3 & 4 Will. 4, c. 27, (abolishing most of the real actions,) it is enacted that no discontinuance shall take away any right of entry.

(q) Vide sup. p. 307.

(r) Gilb. Ten. 200; Dy. 344 a; 4 Rep. 24 a; Co. Litt. 234 a; 1 Rol

Ab. 474.