or device, to appropriate to himself any lands or tenements, by which they should come into mortmain, under pain of forfeiture; and to enforce the obfervance of this ordinance, it was provided, that in cafe of fuch alienation, the King, and other immediate chief lords of a fee fo alienated, fhould be at liberty, within a year from the time of fuch alienation, to enter and hold it in fee as an inheritance; and if the immediate chief lord did not enter within the year, then the next mediate chief lord might enter within half a year next following; and fo every next mediate lord might do, in cafe of default by the lord preceding; and if all the chief lords who were of full age, within the four feas, and out of prifon, fhould for one year be negligent or remifs in that behalf, the King might, immediately after the year compleat from the time of the purchase, gift, or other appropriation, take the lands into his own hands, and infeoff others in them, under certain fervices for the defence of the realm, faving to the intermediate lords their wardships, efcheats, and other incidents (a). THERE feems to be fome inaccuracy in the latter part of this ftatute, with respect to the time of the King's entry into lands held of intermediate lords: where it is faid in the first part, "that the King is to enter within a year," this evidently applies to the cafe where the lands alienated were held immediately of himfelf: but it is faid, "that where all the intermediate chief lords neglected to enter within their respective times, the King might enter immediately after the year compleat." this can only apply where there was but one lord between the King and the tenant who alienated. UNDER this ftatute it has been held, that if there were lord, and an abbot tenant, and the lord released to the ab (a) 7 Ed. 1, ft. 2. 21 Ed. 3, 18. b. bot bot his feigniory, this was mortmain, and the lord paramount fhould have the feigniory by force of the ftatute (a). So, a grant of a rent to an abbot and his fucceffors was mortmain under this ftatute; for the words are not confined to lands, but prohibit the alienation of lands and tenements (b). So, if an abbot had been seised in fee, in his own right, of an advowfon, it would have been mortmain, if he had appropriated it to him and his fucceffors.-The fame obfervation applies to a fimilar appropriation by a bishop (c). If an abbot, or a dean and chapter, had a rent in fee iffuing out of lands, and the tenant of the lands had granted by his deed, that they and their fucceffors fhould diftrain for that rent in other lands; this would also have been conftrued to be within the ftatute (d). If the villain of an abbot or prior had purchased lands or tenements in fee, the abbot or prior could not enter into them without licence; or if he did, he would have incurred a forfeiture in mortmain (e). NOTWITHSTANDING this ftatute, however, it has been faid, that by the custom of London a man might have devised in mortmain, because by fubfequent ftatutes their cuf toms are confirmed (ƒ). It might have been fuppofed that the provifions of this ftatute would have been fufficient to accomplish the purpofe for which it was intended; but the refources of ecclefiaftical ingenuity were not yet exhaufted.--They began now, by collufion with the tenant of the land which was intended to be appropriated to them in mortmain, to set up a title to it in a fictitious fuit, to which the tenant did not appear, on which judgment paffed against him by default; and the judges held that these religious and ecclefiaftical perfons did not thus acquire the land by "title of gift or alienation," and that recovery by such a suit was not within the general words of the ftatute, "by any other mean, art, or device;" because recoveries being profecuted in course of law, were, by law, prefumed to be just and lawful (a). THIS gave rise to the ftatute of the 13 Ed. 1. c. 32, by which, after a recital, that 'religious (b) men and other ecclefiaftical perfons had impleaded men, and that the impleaded made default, by which they loft the tenements, because the juftices had hitherto been of opinion, that in cafes where, by means of the ftatute, the demandant could not obtain seisin of the land by title or gift, or other alienation, yet he should by reafon of the default, and fo the ftatute was eluded,' it was enacted, "that in fuch cases, after default made, it should be inquired by the country, whether the demandant had right in the thing demanded or not; if it was found that he bad right, judgment should pass for him, and he should recover feifin; and if he had no right, the land fhould accrue to the next lord of the fee, if he demanded it within a year from the time of the inqueft taken; and if he did not demand it within the year, it should accrue to the next lord above, if he demanded it within half a year; and that, in the fame manner, every lord should have the space of half a year to demand it fucceffively, till it came to the King, to whom at length, through default of other lords, the lands should (a) 2 Inst. 75. 429. re (b) It appears by the tenor of all these statutes, that the term ligious" was used to denote the regular clergy, in oppofition to the fecular. accrue.. accrue. That the jurors of the inqueft might be challenged, by each of the chief lords of the fees, and, on behalf of the King, by any one that chofe; and that after the judgment given, the land fhould remain clear in the King's hands, until it were deraigned by the demandant, or fome other chief lord, and the sheriff should be charged to answer for it at the exchequer." IT was held, that all actions brought for any lands or tenements, in which a freehold, inheritance, or long term of years was to be recovered, a præcipe quod reddat, a quare impedit, a writ of right of ward, ejectione firmæ, quare ejecit infra terminum, warrantia chartæ, a covenant to levy a fine and execution by elegit, ftatute merchant, or ftatute ftaple, were within this statute (a). It was conftrued to extend to fome who were not parties to the writ; as to the vouchee and tenant by receipt, and the like; and to the cafe where the religious or ecclefiaftical person was tenant or defendant, as well as to the cafe where he was demandant or plaintiff; and not only to the cafe of judgment by default, but to judgment after verdict on iffue joined, judgment by confeffion, nil dicit, and on demurrer. THIS ftatute gave rife to a judicial writ, where judgment was obtained in any other case than after verdict, and which, from one of the duties prescribed to the jury who were to be returned in confequence of it, was called quale jus (b). After reciting the recovery, and the fufpicion of fraud, it commanded the fheriff to return a jury to inquire what right the religious perfon had in the tenements recovered, which of his predeceffors had been seised of them as in right of his church, and what was the annual value. The (a) 2 Inft. 429. (b) Quale jus idem abbas habuit in prædicto meffuagio. fheriff was, in the mean time, commanded to feize the tenernents in queftion into the King's hands, and to anfwer for the iffues at the exchequer; and to give notice to the chief lords, mediate and immediate, of the fee, that they might attend, if they thought proper, at the inqueft to be taken (a). WHERE iffue was joined, the jury were to inquire not only of the fact put in iffue, but likewise of the collufion, and if they neglected to do the latter, a special writ was to iffue expressly for that purpose (b). ABOUT the beginning of the 12th century two religious orders were established under the name of Knights Templars and Knights Hofpitallers, and foon acquired large poffeffions and revenues all over chriftendom, but more efpecially in England. They had the addrefs too, to obtain, not only for themselves, but also for their tenants and farmers, many important privileges and immunities; among others, to be free from tenths and fifteenths to be paid to the King, to be discharged of purveyance, not to be fued for any ecclefiaftical caufe before the ordinary, but before the confervators of their own privileges.-The knights being distinguished by the fign of the cross, it became a practice with their tenants to erect croffes on their houses and lands, that their privileges might not be invaded. The tenants of other lords, in order to participate with them in these advantages, began to fet up croffes on their lands and houses, as if they had also been tenants of these orders (c). To remedy the evils arifing from this practice, it was enacted (d), that the lands on which croffes fhould be fet up with a view to defraud the King or other lords of their 2 Inft. 429. (a) Vid. Regift. Judic. 16, 17. (d) 13 Ed. 1, c. 33. fervices, |