er of the land grants to another the liberty of passing over his grounds, to go to church, to market, or the like: in which case the gift or grant is par ticular, and confined to the grantee alone: it dies with the person; [36] and, if the grantee leaves the county, he cannot assign over his right to any other; nor can he justify taking another person in his company. (n) A way may be also by prescription; as if all the inhabitants of such a hamlet, or all the owners and occupiers of such a farm, have immemorially used to cross such a ground for such a particular purpose: for this immemorial usage supposes an original grant, whereby a right of way thus appurtenant to land or houses may clearly be created. A right of way may also arise by act and operation of law: for, if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it; and I may cross his land for that purpose without trespass. (o) For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same. (p) By the law of the twelve tables at Rome, where a man had the right of way over another's land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased: which was the established rule in public as well as private ways. And the law of England, in both cases, seems to correspond with the Roman. (4) 26 V. Offices, which are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments; whether public, as those of magistrates; or private, as of bailiffs, receivers, and the like. For a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only save only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice, for then they might perhaps vest in executors or administrators. (r) Neither can any judicial office be granted in reversion: because though the grantee may be able to perform it at the time of the grant, yet before the office falls he may become unable and insufficient: but ministerial offices may be so granted; (3) for those may be executed by deputy." Also, by statute 5 & 6 Edw. VI. c. 16. no public office (a few only excepted) shall be sold, under pain of disability to dispose of or hold it. For the law presumes [37] that he who buys an office will by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public. 2 n Finch. law. 31. o Ibid. 68. q Lord Baym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297. p Co. Litt. 56. s 11 Rep. 4. serving to himself a way over such land. Selw. N. P. Trespass, iv. 7. We have seen that the law in some cases implies such a reservation as a matter of necessity, ante 35. n. 25. But the right we are now speaking of may be reserved to the grantor in gross. (26) Lord Mansfield took notice of the inaccuracy of this passage, in the case of Taylor v. Whitehead, Doug. 716, in which it was determined, that if a man has a right of way over another's land, unless the owner of the land is bound by prescription or his own grant to repair the way, he cannot justify going over the adjoining land, when the way is impassable by the overflowing of a river; but if public highways are foundrous, passengers are justified, from principles of convenience and necessity, in turning out upon the land next the road. Christian. (27) If two offices are incompatible, by the acceptance of the latter, the first is relinquished and vacant, even if it should be a superior office. Christian. 2 T. R. 81. See Com. Dig. & Cruise, Dig. Tit. Offices. (28) The 49 Geo. III. c. 126. extends the provisions of this statute to other offices. It enacts that the buying or selling offices, or receiving or paying money or rewards for offices, or for soliciting them, or any real or pretended negotiations relating thereto, or the opening or advertising bouses for transacting business relating to the sale of offices, is a misdemeanor; and that the advertising or publishing the name of any broker or agent, or any proposal for any of the purposes VI. Dignities bear a near relation to offices. Of the nature of these we treated at large in the former book; (t) it will therefore be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate. 29 VII. Franchises are a seventh species. 30 Franchise and liberty are used as synonymous terms; and their definition is (u) a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject. Being therefore derived from the crown, they must arise from the king's grant; or in some cases may be held by prescription, which, as has been frequently said, presupposes a grant. The kinds of them are various, and almost infinite I will here briefly touch upon some of the principal; presuming only, that they may be vested in either natural persons or bodies politic; in one man or in many; but the same identical franchise, that has before been granted to one, cannot be bestowed on another, for that would prejudice the former grant. (w) To be a county palatine is a franchise, vested in a number of persons. It is likewise a franchise, for a number of persons to be incorporated, and subsist as a body politic; with a power to maintain perpetual succession, and do other corporate acts: and each individual member of such corporation is also said to have a franchise or freedom. Other franchises are, to hold a court leet to have a manor or lordship; or, at least, to have a lordship paramount: to have waifs, wrecks, estrays, treasure-trove, royal fish,, forfeitures, and deodands: to have a court of one's own, or liberty of holding pleas, and trying causes: to have the cognizance of pleas; which is a still greater liberty, being an exclusive right, so that no other court shall try causes arising within that jurisdiction: to have a bailiwick, [ 38 ] or liberty exempt from the sheriff of the county; wherein the grantee only, and his officers, are to execute all process: to have a fair or market; with the right of taking toll, either there or at any other public places, as at bridges, wharfs, or the like; which tolls must have a reasonable cause of commencement (as in consideration of repairs, or the like), else the franchise is illegal and void: (x) or lastly, to have a forest, chase, park, warren, or fishery, endowed with privileges of royalty; which species of franchise may require a more minute discussion. 31 As to a forest; this, in the hands of a subject, is properly the same thing with a chase; being subject to the common law, and not to the forest laws. (y) But a chase differs from a park, in that it is not enclosed, and also in that a man may have a chase in another man's ground as well as in his own, being indeed the liberty of keeping beasts of chase or royal game therein, protected even from the owner of the land, with a power of hunting them thereon. A park is an enclosed chase, extending only over a man's own grounds. The word park indeed properly signifies an enclosure ;* t See Book I. ch. 12. w 2 Roll. Abr. 191. Keilw. 196. x 2 Inst. 220. u Finch. 1. 164. aforesaid, shall incur a penalty of 501 for every offence: and the sale or incumbrance of many offices, public and private, especially if in fraud of a party having power of appointment, may be illegal at common law. 1 Bro. C. C. 124. 1 H. B. 322. 327. 3P. Wms. 391. 8 T. R. 89. 94. 4 Dowl. & R. 164. 2 Campb 229. (29) See in general Cruise's Treatise on Dignities, which contains cases of peerage, and modes of proceeding for claims of that nature. (30) See in general, 3 Cruise Dig. 278 ibid. index. Franchise; Com Dig. Franchise. (31) See in general, Manwood, tit. Forest and Chase; Com. Dig. Chase; 1Chitty's Game L. 14 to 17. (32) See in general, 1 Chitty's Game L. 18. It may be granted at this day, though such grants are not usual. Cruise Dig. tit. 34. s. 4. 33 but yet it is not every field or common, which a gentleman pleases to surround with a wall or paling, and to stock with a herd of deer, that is thereby constituted a legal park: for the king's grant, or at least immemorial prescription, is necessary to make it so. (z) Though now the difference between a real park, and such enclosed grounds, is in many respects not very material: only that it is unlawful at common law for any person to to kill any beasts of park or chase, (4) except such as possess these franchises of forest, chase, or park. Free warren is a similar franchise, erected for preservation or custody (which the word signifies) of beasts and fowls of warren; (b) which, being ferae naturae, every one had a [39] natural right to kill as he could; but upon the introduction of the forest laws, at the Norman conquest, as will be shewn hereafter, these animals being looked upon as royal game and the sole property of our savage monarchs, this franchise of free-warren was invented to protect them; by giving the grantee a sole and exclusive power of killing such game so far as his warren extended, on condition of his preventing other persons. A man therefore that has the franchise of warren, is in reality no more than a royal gamekeeper; but no man, not even a lord of a manor, could by common law justify sporting on another's soil, or even on his own, unless he had the liberty of free-warren. (c) This franchise is almost fallen into disregard, since the new statutes for preserving the game; the name being now chiefly preserved in grounds that are set apart for breeding hares and rabbits. There are many instances of keen sportsmen in ancient times who have sold their estates, and reserved the free-warren, or right of killing game, to themselves; by which means it comes to pass that a man and his heirs have sometimes free-warren over another's ground. (d) A free fishery, or an exclusive right of fishing in a public river, is also a royal franchise; and is considered as such in all countries where the feodal polity has prevailed; (e) though the making such grants, and by that means appropriating what seems to be unnatural to restrain, the use of running water, was prohibited for the future by king John's great charter; and the rivers that were fenced in his time were directed to be laid open, as well as the forests to be disafforested. (f) This opening was extended by the second (g) and third (h) charters of Henry III. to those also that were fenced under Richard L.; so that a franchise of free fishery ought now to be at least as old as the reign of Henry II. 35 This differs from a several fishery; because he that has a several fishery must also be (or at least derive his right from) the owner of the soil, (2) which in a free fishery is not requisite. It differs also from a common of piscary before mentioned, in that the free fishery is z Co. Litt. 233. 2 Inst. 199. 11 Rep. 96. a These are properly buck, doe, fox, martin, and roe; but in a common and legal sense extend likewise to all the beasts of the forest: which, besides the other, are reckoned to be hart, hind, bare, boar, and wolf'; and in a word, all wild beasts of venary or bunting. (Co. Litt. 233.) b The beasts are hares, conies, and roes; the fowls are either campestres, as partridges, rails, and quails; or sylvestres, as woodcocks and pheasants; or aquatiles, as mallards and berons. (Co. Litt. 233.) c Salk. 697. d Bro. Abr. tit. Warren. 3. e Seld. Mar. Claus. I. 24. Dufresne, V. 503. R cap. 20. (33) See in general, Com. Dig. Chase, F. Co. Litt 233. a. 1 Chitty's Game L. 19 to 25. A free warren may be granted at this day, though such grant is not usual. Cruise Dig. title, 34. s. 4. (34) Any one may now lease or convey bis land, and reserve to himself the right of entering to kill game, without being subject to be sued as a trespasser; but the right of free warren can only exist by the king's grant, or by prescription, from such a grant is presumed. Manw. Warren Christian Forest, pl. 43. (35) See in general, Com. Dig. Piscary; 1 Chitty's Game L. 283 to 299. an exclusive right, the common of piscary is not so: and therefore, in a free fishery, a man has a property in the fish before they are [40] caught, in a common of piscary not till afterwards..(k) Some indeed have considered a free fishery not as a royal franchise, but merely as a private grant of a liberty to fish in the several fishery of the grantor. (1) But to consider such right as originally a flower of the prerogative, till restrained by magna charta, and derived by royal grant (previous to the reign of Richard I.) to such as now claim it by prescription, and to distinguish it (as we have done) from a several and a common of fishery, may remove some difficulties in respect to this matter, with which our books are embarrassed. For it must be acknowledged, that the right and distinctions of the three species of fishery are very much confounded in our law books; and that there are not wanting respectable authorities (m) which maintain that a several fishery may exist distinct from the property of the soil, and that a free fishery implies no exclusive right, but is synonymous with common of piscary. VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one's maintenance. (n) In lieu of which (especially when due from ecclesiastical persons) a pension or sum of money is sometimes substituted. (o) And these may be reckoned another species of incorporeal hereditaments; though not chargeable on, or issuing from, any corporeal inheritance, but only charged on the person of the owner in respect of such his inheritance. To these may be added, IX. Annuities, which are much of the same nature; only that these arise from temporal, as the former from spiritual persons. An annuity is a thing very distinct from a rent-charge, with which it is frequently confounded: a rent-charge being a burthen imposed upon and issuing out of lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor. (p) Therefore, if a man by deed grant to another the sum of 201. per annum, without expressing out of what lands it shall issue, no land at all shall be charged with it; but it is a mere personal annuity; which is of so little account in the law, that if granted to an eleemosynary corporation, it is not within the statutes of mortmain; (9) and yet a man may have a real estate in it, though his security is merely personal. 36 37 I 2 Sid, 8. k F. N. B. 38. Salk. 637. m See them well digested in Hargrave's notes on Co. Litt, 122. q Ibid. 2. (36, See annuities for lives, and the acts relating to memorials thereof, p. 461, post. (37) The stat. 17 Geo. III. c. 26. makes many regulations as to annuities. By this statute it is enacted, that all future deeds, bonds, and instruments for granting annuities, shall contain the consideration and the names of the parties at length; and if any part of the consideration shall be returned, or any notes shall not be paid when due, the court where the action is brought may stay the proceedings, and order the deeds, bonds, and other instruments, to be cancelled. A memorial of the deed for granting a life annuity, which shall contain the date, names of the parties and witnesses, and the consideration, must, within twenty days after execution, be enrolled in the court of chancery, otherwise the deed, &c. is void; and before judgment shall be entered up upon any warrant of attorney for the recovery of an annuity granted before the act, or before execution sued out on any judgment already entered, a memorial must be enrolled in the same man ner. It also enacts that all contracts for the purchase of annuities with any person under age, shall be void; and any person soliciting a minor to grant an annuity, or any solicitor, scrivener, &c. taking more than 10s. per cent. procuration-money, shall be punished with fine and imprison ment. But this act does not extend to annuities or rent-charges by will, marriage-settlement, or for advancement of child; nor to those secured on lands of equal or greater value, if the grantor be scised in fee or in tail; nor to those secured by stocks actually transferred, if the dividend be of greater value; nor to voluntary annuities without pecuniary consideration; nor to those granted VOL. I. 54 X. Rents are the last species of incorporeal hereditaments. The [41] word rent or render, reditus, signifies a compensation or return, it being in the nature of an acknowledgment given for the possession of some corporeal inheritance. (r) It is defined to be a certain profit issuing yearly out of lands and tenements corporeal. It must be a profit; yet there is no occasion for it to be, as it usually is, a sum of money: for spurs, capons, horses, corn, and other matters may be rendered, and frequently are rendered, by way of rent. (s) It may also consist in services or manual operations; as, to plough so many acres of ground, to attend the king or the lord to the wars, and the like; which services in the eye of the law are profits. This profit must also be certain; or that which may be reduced to a certainty by either party. It must also issue yearly; though there is no occasion for it to issue every successive year; but it may be reserved, every second, third, or fourth year; (t) yet, as it is to be produced out of the profits of lands and tenements, as a recompense for being permitted to hold or enjoy them, it ought to be reserved yearly, because those profits do annually arise and are annually renewed. It must issue out of the thing granted, and not be part of the land or thing itself; wherein it differs from an exception in the grant, which is always of part of the thing granted. (u) It must, lastly, issue out of lands and tenements corporeal; that is, from some inheritance whereunto the owner or grantee of the rent may have recourse to distrein. Therefore a rent cannot be reserved out of an advowson, a common, an office, a franchise, or the like. (w) But a grant of such annuity or sum may operate as a personal contract, and oblige the grantor to pay the money reserved, or subject him to an action of debt: (x) though it doth not affect the inheritance, and is no legal rent in contemplation of law. 39 There are at common law (y) three manner of rents, rent-service, rent charge, and rent-seck. Rent-service is so called because it hath [42] some corporeal service incident to it, as at the least fealty or his feodal oath of fidelity. (2) For, if a tenant holds his land by fealty, and ten shillings rent; or by the service of ploughing the lord's land, and five shillings rent; these pecuniary rents, being connected with personal ser r Co. Litt. 144. u Plowd. 13. 8 Rep. 71. t Ibid. 47. s Ibid. 142. x Ibid. 47. by corporations, or by authority of parliament; nor to those under 101. per annum, unless there be more than one from the same grantor, to or in trust for the same grantee. Upon this act it has been held that a bond given by a third person to secure the payment of an annuity, must be registered in like manner as the deeds of the grantor himself; and if there he a proviso for redemption in the deed, this being considered as a part of the consideration, must be fully set out in the memorial.+ If the annuity should, on application to the court, be set aside for any informality, and not for fraud, although the deeds securing such annuity are absolutely void, yet the grantee may recover back his money in an action of assumpsit for money had and received; but if in this case the annuity-bond was granted by two, one of whom was known to be only a surety for the other, although he had joined in the receipt for the money, the grantee cannot maintain his action of assumpsit against both, but only against that one for whose benefit the money was given. Archbold. (38) As to rents in general, see Cruise Dig. index, Rents; post 3 vol. 6. as to distresses for rent (39) There can be no doubt but the lessee of tithes, an advowson, or any incorporeal hereditament, would be liable to an action of debt for the rent agreed upon. See 2 Wood. 69. where this passage is taken notice of. Christian. Rosher v. Hurdis. 5 T. R. 678. Ex parte Ansell, 1 Pul. & Bos. 62. Steadman v. Purchase, 6 T. R. 737. Harris v. Staple. ton, 7 T. R. 205. Shove v. Webb, 1 T. R. 732. Stratton v. Rastall, 2 T. R. 366. |