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, statute merchant, or ftatute ftaple, were within this ftatute (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 perfon 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 suspicion 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 messuagio. fheriff was, in the mean time, commanded to feize the tenements 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 iflue was joined, the jury were to inquire not only of the fact put in iffue, but likewife of the collufion, and if they neglected to do the latter, a special writ was to iffue exprefsly 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 themfelves, but alfo 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 difcharged of purveyance, not to be fued for any ecclefiaftical caufe before the ordinary, but before the confervators of their own privileges.—The knights being diftinguished 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 should be fet up with a view to defraud the King or other lords of their (a) Vid. Regift. Judic. 16, 17. (d) 13 Ed. 1, c. 33. fervices, fervices, fhould be forfeited in the fame manner as had been provided for lands alienated in mortmain. AT common law, when a tenant made a feoffment generally, without fpecifying the tenure by which the feoffee was to hold the land, it was understood, that he was to hold it of the feoffor by the fame fervices by which the latter held it of his lord (a).-When fuch alienations were first introduced, no confiderable degree of inconvenience was felt by the lord, because the original vaffal remained still liable for the fervices, and diftrefs might be taken for them on the whole of the land: but when the rear vaffal had long poffeffed his feud, and held it of another, he began to think he had a connection only with that other, and none with the original lord. This perfuafion of the rear vaffals gained ground, and the fuperior lords came in the end to be deprived of their fervices and emoluments. To remedy this inconvenience, and to reconcile the jarring interefts of lords and vaffals, while the latter were eager to affert their power of alienation, and the former complained that they were stripped of their ancient rights, the ftatute of quia emptores (b) was made, which enacted in favour of the`vaffals, that they might alienate the whole or any part of their land as they pleafed; and in favour of the fuperior lords, that the lands fo alienated fhould be held of them and not of the alienors (c). BUT it was exprefsly provided, that this liberty fhould not extend to alienation in mortmain (d). WHETHER the King's licence to alienate in mortmain, was originally neceffary in any cafe, but where the tenements to be alienated were held immediately of himself, (c) Vid. this subject ably handled in Dalrymple's feudal tenures, 84, 85, &c. (d) 18 Ed. 1. c. 3, does does not very clearly appear.-It is indeed prefumed, from the intereft the King must have had as ultimate lord of every fee, that his licence was neceflary in all cafes, even fo early as fixty years before the Norman conquest (a). And it is faid that the neceffity of it was acknowledged by the conftitutions of Clarendon in respect of advowsons (b): but the paffage, from which this conclufion is drawn, applies manifeftly only to the cafe of advowfons belonging to the King's immediate tenant (c). IF we may judge from the tenor of the former ftatutes, it is probable, that till the 9th of Henry the third, neither the licence of the King nor of other fuperior lords was neceffary for an alienation in mortmain, in any case where it would not have been neceffary to alienate to a common person, except where there was an express clause of restriction in the original charter of infeoffment. The words of that ftatute feem to imply a general prohibition in favour of the immediate lord of the fee; but as every man may difpenfe with a forfeiture intended for his own benefit (d), it seems, that notwithstanding this statute, an alienation in mortmain was lawful, if made with the licence of the immediate lord, whether that lord was the King or a fubject; and the complaint of the preamble of the next ftatute, does not extend to an alienation without the licence of any other: it complains indeed of a practice, against which the first statute had made no provifion, the entry of religious men into fees holden of themselves; from which it is manifeft, that the general intereft of the (a) Selden. Jan. Angl. 1. 2. f. 452 cited, Bl. Com. 269. (b) Id Ibid. (c) Ecclefiæ de feudo Domini Regis non poffint in perpetuum dari abfque affenfu et conceffione ipfius. Wilkins. 331, 323. (d) Alienatio licet prohibeatur, confenfu tamen omnium, in quorum favorem prohibita est, potest fieri, et quilibet poteft renunciare juri pro fe introducto. Co. Lit. 99. a. community community began to be confidered as equally endangered by these appropriations, as the particular interests of the lords. The enacting part of this second statute therefore, not only prohibits abfolutely all the practices complained of, but makes a provifion for the entry of the King in default of all the other lords.-From this time, therefore, we may suppose, that if an alienation in mortmain was permitted at all, it must have been in confequence of a licence not only from the immediate lord, but from all the mediate lords, and from the King.-A regular form of proceeding began now to be used in applying for this licence; and at length the statute of 27 Ed. 1. ft. 2, enacted, "that men of religion who would purchase lands or tenements in mortmain, fhould have writs out of chancery to enquire upon the points accustomed in all things; and that inquefts of lands or tenements that were worth yearly more than twenty fhillings by extent, should be returned into the exchequer, and a fine made there if the inquest passed for the purchaser; and that it should afterwards be certified to the chancellor, or his deputy, that he should take reasonable fine, and afterwards make delivery." It is probable that, in confequence of this ftatute, the licence of the King came to be confidered as of the principal importance, and that the interests of the mesne lords began to be overlooked, which gave rise to the statute 34 Ed. 1. st. 3, by which it was enacted "that where there were any mefne lords, nothing should be done in pursuanoe of the former ftatute, unless the religious perfons could fhew to the King the affent of fuch lords, under their patents, fealed with their feals, and that nothing should pass where the donor reserved nothing to himself; or where inquifitions were made without warrant, that is, without the original writ being returned with the inqueft, and unless the |