Jurisdictions, Part 45 – Part 48
Mortmaine.
Mortmaine is inquirable in a Leet, for that it is for the benefit of the King and in the Kings Court. What is Mortmaine within the Statute and what not.
WHere one Abbot aliens to another Abbor, or Biſhop to another Biſhop and his Succeſsor, it is Mortmaine, Fitzh fol, 222, D. 16, Aſſiſe 1.
VVhere Land is diviſed to one to pay twelve pound to finde two Chaplaines for ever to ſing in the Church of Saint Albanes in Wood ſtreet for ever, if it be behinde, that the Chaplaine may diſtraine, that is Mortmaine, ſee 32, Ed, 3, 10, and 40. Aſſiſe 29.
J. S. deviſeth certaine Land to his Executors, that they ſhould provide a fit Chaplaine in the Church of D. to celebrate for ever, which Chaplaine, ſhall receive yearly out of the aforeſaid Lands ſix markes, that is no Mortmaine, for nothing is diviſed to the Chaplaine, 4, Aſſiſe 27.43, Aſſiſe 27.
Foure Acres were deviſed to one in Fee, ſo that he and his Heires ſhould pay yearly ſix pound for the maintaining of one Chaplaine to celebrate yearly for ever in the Church of Saint Leonards in Eſtcheape, and that the Rector for the time may levie it for ever, that is Mortmaine, 43 Aſſiſe 33.
J. S. deviſeth Land and two ſhillings Rent, for the maintaining of a Chaplaine in the Church of D. yearly to celebrate, and I will that my Executors ſhould ordaine the aforeſaid Chaplaine, and the Executors do nothing, therefore no Mortmaine, 43 Aſſiſe 34.
If a Villain of a Biſhop purchaſe Lands in Fee, and the Biſhop enter without licenſe it is Mortmaine, 41 of Aſſiſes 4, Fitzh 224, B. 41, Ed. 3. fol 16.
If a Feoffment be made to the uſe of a Bishop and his Succeſsors, it is within the Statute, De religioſis, and ſo it is where he takes profits, 8, Ed: 4. fol. 18.
A Biſhop cannot appropriate an Advowſon of which he is ſeiſed in Fee without the Kings licenſe, and if he doth it is Mortmaine, Fitzh 223 H. ſee 21 Ed. 3. fol, 5. ſeemeth contrary.
If one let to a religious man for a hundred yeares, and ſo from a hundred to a hundred, during eight hundred yeares, this is Mortmaine, but it ſeemeth that a leaſe to a Religious man for eighty years or for a hundred yeares is no Mortmaine, but in the firſt caſe it is by colour of a Tearme, and Mortmaine 29 H, 8, Mortmaine, 39.
Leaſe for eighty years to an Abbot by Martin is Mortmain, Quere, 4 H. 6. fol. 9.
The Tenant lets for life to J. S. the Remainder to a Religious and his Succeſſors, the Lord need not to make claime till the Tenant for Life be dead, for if he in Remainder will wave, this is no Mortmaine, for if the Tenant will make a Feoffment in Fee to the uſe of A. for life, and after to the uſe of a Religious man and his Succeſsors, that is not Mortmaine, till the Tenant for life in uſe dieth, and he in Remainder takes the profits, 29 H. 8. Mortmain 37. Lord and Tenant.
Where one gives in Mortmaine, he ought to have licenſe of the King to do it, and of the cheife Lord, otherwiſe they may enter for Mortmain, and before the licenſe there ought to iſsue out a Writ of (Ad quod damnum) to the King, but is uſed to omit that and to have the licenſe, without any Writ of (Ad quod damnum) Fitzh 221, K.
Where an Abbot holds of J, S. by five ſhillings and J. S. releaſeth to the Abbot, this ſhall go by extinguiſhment, and for that it is no Mortmain, 22 Ed. 3. fol. 22.
47 Ed. 3. fol. 10. If alienation in Mortmain be, and the Alienee is diſseiſed, and the Diſſeiſor dieth ſeiſed his Heir is in by diſcent, yet the Lord may enter within the year, for he hath but a Title of entry and cannot have an action, but contrary of him which hath a Right of Entry and may have and Action.
39 Ed. 3. fol. 38. Lord and Tenant, the Signiory is granted to A. in Taile, the Remainder to B. in Taile, the Tenant Alien in Mortmaine, the firſt Tenant in Taile cannot enter within the yeare, and after the ſecond Tenant in Taile dye without Iſſue, and B. in Remainder enter within halfe a yeare, and held that he could not, for the Tenant in Taile and he in Remainder have but one Signiory, and are but one Lord, and both ſhall have but one yeare by the Statute.
Fitzh 223 E. If a man will exchange Land with an Abbot or other body corporate, that is Mortmaine, and he ought to have a Licenſe.
Fitzh 222 If an Abbot give Lands to another Abbot or a Corporation it is Mortmaine, and ought to have a Licenſe and (Ad quod damnum) ſhall be ſued, and ſee the (Ad quod damnum) 221. R.
48 Ed. 3. fol. 29. Abbot purchaſe Lands with warranty by Licenſe, and is impleaded and vouch, &c. and Judgment is given againſt the Abbot, and he recovers over in value, it is not Mortmaine for the Lands recovered in value, and he ought not to have licenſe of the Lands recovered in value, for the firſt licenſe ſerves in that, ſee, 45 Ed. 3. fol. 18. Where an Abbot recovers in value.
9 H. 6. fol. 9. If an Abbot have Rent out of my Land, and I grant to him that he may diſtraine for the ſame Rent in other Land, this is no Mortmain, for he hath nothing but ancient Rent, and for that it is no Mortmain.
3 Ed. 4. fol. 14. By Laicon the Statute of Religious, holds place of common and Rent charge, which is no Land nor Tenement, and yet the words of the Statute are Lands and Tenements.
25 H. 8. tit 37. Lord and Tenant, the Tenant lets for life to J.S. the Remainder to an Abbot and his Succeſsors; The Lord need not to make claime till the Tenant for life be dead; for if he wave the Remainder it is no Mortmain; and held that the Appropriation of an Advowſon without licence is Mortmain.
Fitzh: 211. The King may give licence to his Tenant to alien in Mortmain; for he may diſpence with the Statute, but a common perſon cannot, but the King and the Meſne Lords may give licence to a Tenant to alien in Mortmain; for the Statute was made for the advantage of the Lords, and they may diſpenſe with it.
Treaſure Trove.
TReaſure hid in the ground, and found, belongeth to the King; and if it be found in the Sea, it is to the finder, Britton, fol. 26.
He to whom the property is ſhall have Treaſure found, becauſe it belongeth not to the King, unleſs when no man knoweth who hid the Treaſure, Statham, Tit. Coron. and 22 H. 6. Coron. 446.
Puniſhment of taking Treaſure found, is not of life and member, but ſhall be by Impriſonment and Fine, Statham, Tit: Coron. and 22 Ed. 3. Coron. 265.
Treaſure found belongeth to the Lord the King, and not to the Lord of the Liberty, unleſs by ſpecial words in the Deed of the Liberty contained, or by preſcription, Statham, Tit: Coron. and 8 Ed. 2. Coron. 436.
Treaſure found, is a certain old hiding Money or other Mettall, of which there appeareth no memory, ſo that now it hath no Owner; therefore all ſuch Treaſure is no mans proper Goods, and by the old Law it was the finders; but now by the Law of the People, it is made the Kings; Stamford, fol. 39.
Fſtrey.
WHere the Lord hath by a year and a day a Beaſt, and it be cried in the Church, and in the Market, the property is changed, 39 Ed. 3. fol. 3.
A man cannot intitle him to an Eſtrey, till the year and the day be paſt, for he to whom the property is, may take him within the year: but Statham ſeemed he could not take it, without agreeing for his meat, 31 Ed. 3. Eſtrey, 4.
Detinue, Iſſue if ſufficient was tendered for his meat before claim, or not, 44 Ed. 3. fol. 14.
Young Swans may be taken for a Stray, and Proclamation made in Fairs and Markets, 7 H. 6. fol. 29.
If the Owner do not come within a year and a day, and be proclaimed in Markets and Pariſh Churches, then the property remains to the Lord, Britton, fol. 26.
One juſtifies to have a ſtray in his Mannour, (according to the cuſtome uſed in the Kingdom of England) he proclaimed them in two Markets, ſcil. in D. & S. on the Market days; Brook, Eſtrey, 10.
If one have a ſtray by three quarters of a year, and after that ſtrays, and another happens it within his Mannour, the ſecond ſhall not have it, for he hath no property untill the year and day, and Proclamation, 33 H. 8. Eſtrey, 11.
If a man have a Weif or a Stray by preſcription, and another taketh that out of his Mannour, he ſhall have Treſpaſs, though he did not ſeiſe them before. Fitzh. fol. 91. B.
One cannot take the Kings Beaſts for a ſtray, though they were within the Mannour by two years, 39 Edw. 3. fol. 4.
If one hath taken a ſtray, and doth not proclaim it, the Owner may take it again, though he comes to claim it after a year and a day; Britton, fol. 26.
Book of Entries, One which juſtifies for a ſtray ſhall make preſcription, that is to ſay, That according to the cuſtome in the Kingdome of England uſed, he proclaimed them in two Market Towns, ſcil. in D. & R. and ſo it ſeemeth, that an Eſtrey ſhall be proclaimed in two the next Market Towns upon Market days; and yet it ſeemeth that Strays ſhall be proclaimed once in the Church, and twice in the Markets.
Waife.
Where Goods waived are ſeiſed by an Officer, the party ſhall not have them again without freſh Suite, and ſue an Appeal, and now upon an Indictment give that in Evidence.
BY freſh Suite the firſt Owner ſhall re-have his Goods, which were ſtolne and waived, if he make freſh Sute, and bring an Appeal, 21 Ed. 4. Tit. 16.
Treſpaſs, the Lord juſtifies, for that they were ſtolne and waived, the Plaintiff may ſay, that they were not ſtolne, or they were not waived, 12 Ed. 3. fol. 5.
Goods waived, the Owner may ſeiſe them twenty years after, if the Lord of the Franchiſe, nor the King ſeiſe before: but if they are ſeiſed, yet if he bring an Appeal, and make a freſh Suite, he ſhall have them again, 21 Edw. 4. Tit. 16.
Detinue, the Defendant as Lord juſtifies, that he took thoſe as waife, and good, 10 H. 6. fol. 22.
If one have a Waife, and it be taken out of his Mannor, he ſhall have Treſpaſs, without ſeiſing; and though he do not ſeiſe them; Fitzh: fol. 91.
Waifes and ſtrays not claimed within the year and day, are the Lords, Britton, fol. 26.
Where Goods are waived, and the Lord ſeiſes them, the property is changed, that the Owner ſhall not have them without ſuing an Appeal, notwithſtanding by the 21 of H. 8. chap. 11. Raſtal Reſtitution 2.
If he give Evidence to the Jury upon the Indictment, he ſhall have Reſtitution, Brook Eſtray 8
If a man be robbed, and make freſh Suite, he ſhall be reſtored, notwithſtanding that he which hath waived hath ſeiſed them before, 7 H. 4.44.
If he make freſh Suite after the Felony, he ſhall have his Goods again notwithſtanding, that they were waived and ſeiſed; and there ought to be an Appeal ſued, and ſo to have them when they are ſeiſed, Stamford, fol. 186. A.