For, if he take a lease for years of lands, meadows, &c., upon 5 Mar. Br. tit. Deni. office found, the king shall have it (6). But of a house for zen, 22. habitation he may take a lease for years as incident to com- of Also, if a man commit felony, and after purchase lands, and after is attainted, he had capacity to purchase, but not to hold it; for in that case the lord of the fee shall have the escheat (10); and if a man be attainted of felony, yet he hath capacity to purchase to him and to his heirs, albeit he can have no heir, but he cannot hold it; for in that case the king shall have it, by his prerogative, and not the lord of the fee; for a man attainted hath no capacity to purchase (being a man civiliter mortuus) but only for the benefit of the king, no more than the alien-née hath. a Pasch. 29 Eliz. in Sir Persons attainted, or sole. Magna Charta, cap. If any sole corporation or aggregate of many, either ec- Corporations aggregate clesiastical or temporal (for the words of the statute be si quis, religiosus vel alius) purchase lands or tenements in fee, they have capacity to take but not to retain (unless they have sufficient licence in that (11) behalf); for, within the year after the alienation, the next lord of the fee may enter; and, if he do not, then the next immediate lord from time to time to have half a year; and for default of all the mesne lords, then the (6) See ant, vol. 1. p. 91. n. (12). (7) See ant. vol. 1. p. 92. n. (13). (8) But see ant. vol. 1. p. 92. n. (14). (9) But see ant. vol. 1. p. 92. n. (15). (10) Tenant in tail is guilty of murder, and before conviction levies a fine. It was a question, whe ther the fine should bar the issue (11) As to this, see ant. 98 b. (C) See ant. vol. 1. p. 92. n. (F).-[Ed.} 15 R. 2. cap. 5. 23 H. 8. cap. 10. 39 El. cap. 5. 23 H. 3. Ass. 436. 29 Ass. 5. p. 17. Brit. fo. 32. Villains. Infants. (Cro. Jam. 320. 1 Rol. Abr. 731.) Persons being non com• pos mentis. 43 Ass. p. 23. king to have the land so aliened for ever, which is to be understood of such inheritance as may be holden. But of such inheritances as are not holden, as villains, rent-charges, commons, and the like, the king shall have them presently by a favourable interpretation of the statute. An annuity granted to them is not mortmain, because it chargeth the person only. I pass over villains or bondmen, who have power to purchase lands, but not to retain them against their lords, because you shall read at large of them in their proper place in the Chapter of Villenage. An infant or minor (whom we call any that is under the age of twenty-one years) hath, without consent of any other, capacity to purchase, for it is intended for his benefit; and at his full age he may either agree thereunto, and perfect it, or, without any cause to be alleged, waive or disagree to the purchase; and so may his heirs after him, if he agreed not thereunto after his full age. A man of non-sane memory may, without the consent of any other, purchase lands, but he himself (12) cannot waive it; but, if he die in his madness, or after his memory recover, without agreement thereunto, his heir may waive and disagree to the state, without any cause shewed; and so of an ideot. But, if the man of non-sane memory recover his memory, and agree unto it, it is unavoidable. If an abbot purchase lands to him and his successors without the consent of his convent, he himself cannot waive it, but his successor may upon just cause shewed; as if a greater rent were reserved thereupon than the value of the land, or the like; but he cannot waive it unless it be upon (12) Fitzherbert argues strongly, that a noncompos may plead his disability to avoid his own acts as well as an infant. Fitz. Nat. Br. 202. See post, 247 a & b. much curious learning on the subject, and also 2 Blackst. Com. ed. 5. p. 291, where the progress of the opinions on this subject is critically stated. [Hargr. n. 12. 2 b. (11).] [In Stroud v. Marshal, Cro. Eliz. 398. the opinion of Fitzherbert was denied to be law, and de non sune memory held to be a bad plea to an action of debt upon an obligation. However Sir William Blackstone and other writers have considered the opinion of Fitzherbert to be well founded. 2 Bl. Com. 292. 1 Fonbl. Eq. 48, 49. Et vid. Yates v. Boen, Stra. 1104. in which case such plea was allowed to prevail against a bond. By the 4 Geo. 2. c. 10. idiots, lunatics, and persons non compos mentis, or their committees, being trustees or mortgagees, are compellable to convey under the direction of the court of chancery. And all such conveyances are declared to be good and valid.]-[Ed.] * 3 a. just cause: et sic de similibus, prælatus ecclesiæ suæ condi- Bract. lib. 2. fol. 12 tionem meliorare potest, deteriorare nequit. And in another & 32. place he saith, Est enim ecclesia ejusdem conditionis, quæ fungitur vice minoris. *But no simile holds in every thing, according to the ancient saying, Nullum simile quatuor hedibus currit. (a) An bermaphrodite may purchase according (a) 1 H. 7. 16. 7 H. 4. to that sex which prevaileth. A feme covert cannot take any thing of the gift of her husband (13), but is of capacity to purchase of others without the consent of her husband. And of this opinion was Littleton in our books, and in this book, sect. 677, but her husband may disagree thereunto, and devest the whole estate; but, if he neither agree nor disagree, the purchase is (14) good; but, after his death, albeit her husband agreed thereunto, yet she may, without any cause to be alleged, waive the same, and so may her heirs also, if after the decease of her husband she herself agreed not thereunto. (b) A wife (uxor) is a good name of purchase, without a christian name; and so it is, if a christian name be added and mistaken, as Em for Emelyn, &c. for utile per inutile non vitiatur. But the queen, the consort of the king of England, is an exempt person from the king by the common law, and is of ability and capacity to purchase and grant without the king. Of which see more at large, sect. 200. Persons deformed having human shape (15), ideots, mad 17. 18 H. 6. 8. 39 E. 3. 30. 15 E. 4. fol. 1 b. 27 H. 8. 24. (Hob. 204. 5 Co. 119 b.) Femes covert. (b) A name of pur 111.5. 8. 46 E. 3. 22. 12 Ass. 18. chase. 2 H. 4. 25. 30 E. 3. 18. F. N. B. 97 a. 1 Ass. 11. 11 H. 4. 35. Estoppel 231. 9 E. 4. 49. 13 E. 3. 3 b. men, lepers, deaf, dumb, and blind, minors, and all other Persons deformed, &c. reasonable creatures, have power to purchase and retain lands or tenements (D). Some are capable of certain things for some special purpose, but not to use or exercise such things themselves; as the king is capable of an office, not to use but to grant, &c. (16). 2. Persons capable for some special purpose only.. A monster born within lawful matrimony, that hath not 3. Persons incapable of human shape, cannot purchase, much less retain any thing. taking by purchase. A monster. (D) That a bastard, having acquired a name by reputation, may purchase by his reputed name to him and his heirs, see ante, 3 b. vol. 1. p. 148.-[Ed.] Persons professed. (c) Bract. lib. 5. fol. (c) The same law is de professis et mortuis sæculo, for they are civiliter mortui (17); whereof you shall read at large in 421.415. Britt. cap. cap. 41. 1 E. 3. 9. 44 E. 3. 4, 3 H. 6. 24. 21 R. 2. Judgment, 263. 7 H. 4. 2. 14 H. 8. 16. Doct. & Stud. 141. Pl. Com. fol. 47. Britt. cap. 33. (Ant. 76 a.) 3 a. A society not incorpo rated. (d) The parishioners or inhabitants, or probi homines of Dale (18), or the churchwardens, are not capable to pur(d) 12 H. 7, 8. 37 H. chase lands, but goods they are; unless it were in ancient time, when such grants were allowed (19). 6. 30. 10 H. 4. 3 b. (4 Inst. 297.) (c) 32 E. S. Barre 261. (Hob. 86. 6 Co. 59.) 18 E. S. 50. 12 Ass. 35. 14 H. 6. 12. 34 Ass. (e) An ancient grant by the lord to the commoners in such a waste, that a way leading to their common should not be straitened, was good; but otherwise it is of such a grant at (f)33 E. 3. Grant 83. this day. (f) And so in ancient time a grant made to a lord, et hominibus suis, tàm liberis quàm naturis, or the like, was p. 11. 40 Ass. p. 21. good: but they are not of capacity to purchase by such a name at this day. But yet at this day, if the king grant to a man to have the goods and chattels de hominibus suis, or de tenentibus suis, or de residentibus infra feodum, &c. it is good ; for there they are not named as purchasers or takers, but for another man's benefit, who hath capacity to purchase or take. 3 b. 4. Persons specially disabled to take some particular thing. (g) 5 E. 4. tit. Office and Officer. Bro. 48. Vinter's case, 5 Mar., (Cro. Jam. 17.) (g) But the common law doth disable some men to take any estate in some particular things; as if an office, either of the grant of the king or subject, which concerns the administration, proceeding, or execution of justice, or the king's revenue, or the commonwealth, or the interest, benefit, or safety of the subject, or the like; if these, or any of them, be granted to a man that is unexpert, and hath no skill and science to exercise or execute the same, the grant is merely (20) void, and the party disabled by law, and incapable to take the same, pro commodo regis et populi; for only men of skill, knowledge, and ability to exercise the same, are capable of the same, to serve (17) But it seems, that this doctrine is now become inapplicable; for there is no longer any legal establishment for professed persons in England, and our law never took notice of foreign professions. See post, 132 b. 2 Rol. Abr. 43. C. Wright's Ten. 28. 1 Salk. 162.[Hargy. n. 7.3 b. (17).] (18) See in Dy. 100. the case of a grant by the crown probis hominibus de Islington, rendering a rent. -Hargr. n. 3. 3 a.] the king and his people. See (19) Acc. as to churchwardens, Finch's law, 8yo. ed. 178. Keilw. 32 a. But by 9 Geo. 1. c. 7. they are enabled to purchase a workhouse for the poor; and by custom, in some places, as in London, the parson and churchwardens are a corporation to purchase lands. Cro. Jam. 532.-[Hargr. n. 4. 3 a. (13).] (20) See ant. vol. 1. p. 236. n. (11). but (h) An infant or minor is not capable of an office of stew (k) And regularly it is requisite, that the purchaser be named by the name of baptism and his surname, and that special heed be taken to the name of baptism; for that a man cannot have two names of baptism as he may have divers surnames (25). (k) Bract. lib. 4. tract. 1. cap. 20. Britt. fol. 121, 122. 3 E. 5. 61. 30 Ass. 16. 46 E. 3. 22. 39 E. 3. 17. 3 H. 6. 25. 19 H. 6. 2. 11 H. 4. 27. 9 E. 4. 29. 5 E, 4.46. 65. 14 H. 7. 11. 20 Eliz. 20 E. 3. 25. 1 H. 4. 5. 3 H. 6. 26. 19 H. 6. 2. 34 H. 6. 19. 5 1 H. 5. 5. 18 E. 3. 32. 27 E. 3. 85. 8 E. 3. 427. 7 H. 6. 29. 78. 25 E, 3. 43. 26 Ass. 8 E. 3. 436. 27 H. 8. 11. 9 H. 5.9. william. 24 E. 3. 64. Fitzrobert. 27 E. 3. 85. tit. Grant, 67. (1) And it is not safe in writs, pleadings, grants, &c. (1) 40 E. 3. 22. Fitzto translate surnames into Latin. As if the surname of Fitzjohn. 39 E. 3. 24. one be Fitzwilliam, or Williamson, if he translate him to Filius Willi. if in truth his father had any other christian name than William, the writ, &c. shall abate; for Fitzwilliam or Williamson is his surname, whatsoever christian name his father had, therefore the lawyer never translates surnames. And yet in some cases, though the name of baptism be mis- Hob. 32. 2 Rol. Abr. taken (as in the case before put of the wife) the grant is good. So it is, if lands be given to Robert earl of Pembroke, where his name is Henry, to George bishop of Norwich, where his name is John, and so of an abbot, &c.; for in these and the like cases there can be but one of that dignity or name. And therefore such a grant is good, albeit the name of baptism be mistaken. If by licence lands be given to the dean and chapter of the holy and undivided Trinity of Norwich, this is good, although the dean be not named by his proper name, if there were a dean at the time of the grant; Vouch. 179, 57 E.3. 44. Mo. 232.) but in pleading he must shew his proper name. And so, on but in pleading the the other side, if the dean and chapter make a lease without proper name must be naming the dean by his proper name, the lease is good, if (21) See ant. vol. 1. p. 173. n. (31). (22) See ant. vol. 1. p. 236. n.(12). (*) See ant. vol.1. p. 237. n. (G1.). (23) See Cro. Eliz. 27. 222. 328. Cro. Jam. 558.-[Hargr, n. 5. 3 a.] shewn. |