43 Geo. 3, c. 108.

By 43 Geo. 3, c. 108, s. 1, it is enacted, "That all and every person and persons, having in his or their own right any estate or interest in possession, reversion, or contingency, of or in any lands or tenements, or of any property of or in any goods or chattels, shall have full power, licence, and authority, at his and their will and pleasure, by deed enrolled, in such manner, and within such time, as is directed in England by the statute made in the twenty-seventh year of the reign of King Henry the Eighth, or by his, her or their last will or testament in writing, duly executed according to law, such deed, or such will or testament, being duly executed three calendar months at least before the death of such grantor or testator, including the days of the execution and death, to give and grant to and vest in any person or persons, or body politic or corporate, and their heirs and successors respectively, all such his, her, or their estate, interest, or property in such lands or tenements, not exceeding five acres, or goods and chattels, or any part or parts thereof, not exceeding in value five hundred pounds, for or towards the erecting, rebuilding, repairing, purchasing, or providing any church or chapel where the liturgy and rites of the said united church are or shall be used or observed, or any mansion house for the residence of any minister of the said united church officiating, or to officiate in any such church or chapel, or of any outbuildings, offices, churchyard, or glebe, for the same respectively, and to be for those purposes applied, according to the will of the said benefactor, in and by such deed enrolled, or by such will or testament executed as aforesaid expressed, the consent and approbation of the ordinary being first obtained, and in default of such direction, limitation, or appointment, in such manner as shall be directed and appointed by the patron and ordinary, with the consent and approbation of the parson, vicar, or other incumbent."

Sect. 2. "Only one such gift shall be made by one person, and where it exceeds five acres or five hundred pounds the chancellor may reduce it."

Sect. 3. "No glebe upwards of fifty acres shall be augmented with more than one acre."

Sect. 4." And whereas it often happens that small plots of land held in mortmain lie convenient to be annexed to some such church or chapel, or house of residence, as aforesaid, or to some churchyard, or curtilage thereto belonging, or convenient to be employed as the site of some such church or chapel, or house to be hereafter erected, and for the necessary and commodious use and enjoyment thereof, it is therefore further enacted, that it shall be lawful for every body politic or corporate, sole or aggregate, by deed enrolled as aforesaid, with or without confirmation, as the law may require, to give and grant, either by way of exchange or benefaction, any such small plot of land not exceeding one acre, to any person or persons,

body politic or corporate, his and their heirs and successors respectively, to be held, used, and applied for the purposes aforesaid; and such last-mentioned person and persons, bodies politic and corporate, and their heirs and successors respectively, shall have full capacity and ability, with consent of the incumbent, patron, and ordinary, to take, hold, and enjoy such small plot of land for the purposes aforesaid (y)."

[The Statute of Mortmain does not extend to the British territories in the East Indies, or to the colonies generally (z), or (as has been said (a)) to Scotland. But grants of land to religious houses were prohibited in Scotland at a very early period. In that country the term mortification seems to have been nearly synonymous with mortmain (b).

[Neither the 43rd of Elizabeth nor the statute of Geo. 2 extend to Ireland, where there is no similar restraint on devises to charitable uses; but interest in land in England cannot be given for charitable purposes in Ireland, though as a purely personal estate it may be so bequeathed (c). (See tit. Popery.)

[Lastly, it is a general principle, invariably acted upon since the statute of Geo. 2, that the produce of a real estate cannot be given to what, in contemplation of the English law, is for a charitable purpose, although that purpose is to be carried into execution in another country (d).-ED.]

Mortuary.

1. MORTUARY seems to have been originally an oblation made at the time of a person's death. In the Saxon times there was a funeral duty to be paid, which was called pecunia sepulchralis, and symbolum animæ, or the soul-shot, which was required by the Council of Anham, and enforced by the laws of King Canutus, and was due to the church which the party deceased belonged to, whether he was buried there or not (e). Dr. Stillingfleet makes a distinction between mortuaries and

(y) [2 Black. Comm. 425-427.] (a) [See the recent cases of The Mayor of Lyons v. The East India Company, Moore's Rep. of Privy Council, vol. i. p. 175; Att.-Gen. v. Stewart, 2 Meriv. 156. And for the general law on the application of the laws of Great Britain to her colonies, see Calvin's case, 7 Rep. 34; 2 P. Wms. 75; Campbell v. Hall, Cowp. 204; Blanchard v. Goddy, 2 Salk. 411; Smith v. Brown, ibid. 666; Rex v. Vaughan, 4 Burr. 2500; Ex parte Prosser, 2 Br. C. C, 325; Evelyn v. Forster, 8 Ves.96; Ex parte Ander

son, 5 Ves. 240; Sheddon v. Goodrich, 8 Ves. 481; Pike v. Hoare, Ambl. 428; S. C.2 Eden, 185, and note.ED.]

(a) [See p. 561 a.]

(b) [Craig, lib. i. Dig. 10, s. 35; Erskine's Institutes, b. ii. tit. 4, s. 10.j

(c) [See Att.-Gen. v. Power, 1 Ball & B.; Campbell v. Earl of Radnor, 1 Br. C. C. 271; Curtis v. Hutton, 14 Ves. 540; Collyer v. Burnett,1 Taunt. 79.]

(d) [Att.-Gen. v. Harley, 5 Madd. 321.]

(e) 1 Still. 171.

Limitations

of Mortuaries by Statute.

corse presents: the mortuary, he says, was a right settled on the church upon the decease of a member of it; and a corse present was a voluntary oblation usually made at funerals (ƒ).

And it seemeth that in ancient times a man might not dispose of his goods by his last will and testament without first assigning therein a sufficient mortuary to the church. And this, in a constitution of Archbishop Winchelsea, is called the principal legacy, so denominated, (saith Lindwood), because they who died did bequeath the best or the second best of their goods to God and the church, in the first place, and before other legacies (g).

And in another constitution of the same archbishop it is enjoined, that if a person at the time of his death have three or more quick goods, the first best shall be given to him to whom it is due, (that is, to the lord of the fee for a heriot), and the second best shall be reserved to the church where the deceased person received the sacraments while he lived (h).

And this was usually carried to the church with the dead corpse. And Mr. Selden quotes an ancient record, where it is recited, that a horse was presented at the church the same day in the name of a mortuary, and that the parson received him according to the custom of the land and of holy church (¿).

2. By the statute of the 21 Hen. 8, c. 6, ss. 1 & 2, "Forasmuch as question and doubt hath arisen upon the order, manner and form of demanding, receiving and claiming of mortuaries, otherwise called corse presents, as well for the greatness and value of the same, which, as hath been lately taken, is thought overexcessive to the poor people and other persons of this realm, as also for that such mortuaries or corse presents have been demanded and levied for such as at the time of their death have had no property in any goods or chattels, and many times for travelling and wayfaring men in the places where they have fortuned to die; to the intent therefore, that all doubt, contention and uncertainty herein may be removed, and as well the generality of the king's people therein remedied, as also the parsons, vicars, parish priests, curates and others having interest in such mortuaries and corse presents indifferently provided for, it is enacted, that no parson, vicar, curate, nor parish priest, nor any other spiritual person, nor their farmers, bailiffs, nor lessees, shall take, receive or demand of any person within this realm, for any person dying within the same, any manner of mortuary or corse present, nor any sum of money nor any [564] other thing for the same, more than is hereafter mentioned, nor shall convent or call any person before any judge spiritual for the recovery of any such mortuaries or corse presents, or any other thing for the same, more than is hereafter mentioned, on pain to forfeit for every time so demanding, receiving, taking

(f) 1 Still. 172, 173.

(g) Lind. 196.

(h) Ibid. 184,
(i) Seld. Hist. Tith, 287.

or conventing or calling any such person before any spiritual Limitations judge, so much in value as they shall take above the sum limited of Mortuaries by this act, and over that 40s. to the party grieved contrary to this act, to be recovered by action of debt."

Sect. 3. "And no manner of mortuary shall be taken or demanded of any person whatsoever, which at the time of his death hath in moveable goods under the value of ten marks.

"And no mortuary shall be given or demanded of any person, but only in such place where heretofore mortuaries have been used to be paid and given, and in those places none otherwise but after the rate and form hereafter mentioned.

"And no person shall pay mortuaries in more places than one, that is to say, in the places of their most dwelling habitation, and there but one mortuary.

"And no parson, vicar, curate, parish priest or other, shall, for any person dying or dead, and being at the time of his death of the value in moveable goods of ten marks or more, clearly above his debts paid, and under the sum of 301., take for a mortuary above 3s. 4d. in the whole. And for a person dying or dead, being at the time of his death of the value of 301. or above, clearly above his debts paid, in moveable goods, and under the value of 401. there shall no more be taken or demanded for a mortuary than 6s. 8d. in the whole. And for any person dying or dead, having at the time of his death of the value in moveable goods of 401. or above, to any sum whatsoever it be, clearly above his debts paid, there shall be no more taken, paid or demanded for a mortuary than 10s. in the whole."

Sect. 4. "Provided, that for no woman being covert, baron, nor child, nor for any person not keeping house, any manner of mortuary, nor any thing or money by way of mortuary, shall be paid: nor also for any wayfaring man or other that dwelleth not nor maketh residence in the place where they shall happen to die, but that the mortuary of such wayfaring persons be answerable in places where mortuaries be accustomed to be paid in manner and form and after the rate before-mentioned, and none otherwise, in the place or places where such wayfaring persons at the time of their death had their most habitation, house and dwelling places, and no where else."

by Statute.

Sect. 5. "Provided, that it shall be lawful to all parsons, vicars, curates, parish priests, and other spiritual persons, to take any sum of money or other thing, which by any person dying shall be disposed, given or bequeathed to them, or any [565] of them, or to the high altar of the church."

Sect. 6. "And no mortuaries nor corse presents, nor any sum of money or other thing for any mortuary or corse present, shall be demanded or taken in the parts of Wales, nor in the marches of the same, nor in the town of Berwick, but only in such places of the same where mortuaries have been accus

Limitatious

of Mortuaries by Statute.

tomed to be paid; and in those places no mortuaries or corse presents, nor any other thing for mortuary or corse present, shall be demanded or taken, but only after the form and manner above specified, and none otherwise, nor of any other person than is limited by this act, upon the pain contained therein.'

Sect. 7. "Provided, that it shall be lawful to the Bishops of Bangor, Landaff, St. David's and St. Asaph, and likewise to the Archdeacon of Chester, to take such mortuaries of the priests within their dioceses and jurisdictions as heretofore have been accustomed.

"Provided also, that in such places where mortuaries have been accustomed to be taken of less value than is aforesaid, no person shall be compelled to pay in such place any other mortuary, or more for any mortuary than hath been accustomed; nor that any mortuary in such place shall be demanded or taken of any person exempt by this act, nor in any wise contrary to this act, upon the pain afore limited."

By the 12 Ann. stat. 2, c. 6, the clause in the said statute, so far as it relates to the taking of any mortuary or corse present upon the death of any clergyman within the dioceses of Bangor, Landaff, St. David's, and St. Asaph, is repealed; and certain sinecures and prebends are annexed to the respective sees, in recompense and in lieu of the mortuaries of priests dying within the said respective dioceses.

And as to the archdeaconry of Chester, it is said, that the custom there was, that the archdeacon (and after the erection of the episcopal see there, the bishop as archdeacon) had for a mortuary, after the death of every priest dying within the archdeaconry of Chester, the best horse or mare, his saddle, bridle, spurs, his best gown or cloak, his best hat, his best upper garment under his gown, his tippet, and his best signet or ring (j).

But by the 28 Geo. 2, c. 6, the aforesaid clause, so far as it relates to the taking of any mortuary or corse present upon the death of any clergyman within the archdeaconry of Chester, shall immediately after the living of Wareton shall become void be repealed, and the said living shall be annexed to the [ 566] see of Chester, in compensation of such mortuaries.

And by the 26 Hen. 8, c. 15, "Forasmuch as divers subjects inhabiting within the archdeaconry of Richmond in the county of York, be and of long time have been sore and grievously exacted and impoverished by the parsons, vicars, and others such as have benefices and spiritual promotions within the same, as by taking of every person when he dieth, in the name of a pension or of a portion, sometime the ninth part of all his goods and chattels, and sometime the third part, to the open and manifest impoverishing of most part of the king's poor subjects inhabiting and deceasing within the same; it is enacted, (j) Cro. Car. 237.