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to have a bailiwick, or liberty exempt from the sheriff of the founty;

*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. 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; 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 kill any beasts of park or chase, (a) 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 ;(6) which being feræ naturæ, every one had a right to kill as he could;

but upon *the introduction of the forest laws, at the Norman conquest, as

will be shown 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)3 A free fishery, or 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(9) and third(h) charters of Henry III. to (*) 2 Inst. 220.

Manwood, For. L. c. 4, s. 3, gives a different account. inst. 314.

says (and supports his opinion by referring to the Regist. (4 '0. Litt. 233. 2 Inst. 199. 11 Rep. 86.

Brev. fol. 93) there are only two beasts of warren, the hare (These are properly buck, doe, fox, martin, and roo, and the coney, and but two fowls of warren, the pheasant

and the partridge.

$9 Salk. 637. to be hart, hind, hare, boar, and wolf; and, in a word, all (d) Bro. Abr. tit. Warren, 3. wild beasts of venary or hunting. Co. Litt. 233.

1) Seld. Mar. Claus. 1. 24. Dufresne, V. 503. Crag. de (6) The beasta are hares, coneys, and roes; the fowls are Jur. feod. II. 8, 15. either campestres, as partridges, rails, and quails, or syl () Cap. 47, edit. Oxon. restres, as woodcocks and pheasants, or aquatiles, as mal (6) Cap. 20.

(*) 9 Hen. III. c. 16. Any one may now lease or convey his 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 which such a grant is presumed. Manw. Warren. Forrest, pl. 43.-CHRISTIAN.


but in a common and legal sense extend likewise to all tho I asts of the forest; which, besides the other, are reckoned

Iards and herons. Co. Litt. 233.

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those also that were fenced under Richard I.; so that a franchise of free fishery ought now to be at least as old as the reign of Henry II. 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,{) which in a free fishery is not requisite It differs also from a common of piscary before mentioned, in that the free fishery is an exclu*sive right, the common of piscary is not so: and therefore, in a free fishery, a man has a property in the fish before

[*40 they are 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 acknow. ledged, 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 S9

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.(0) And these may be reckoned another species of incorporeal hereditaments; though not chargeable on, or issuing from, any corporoal 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 burden 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

(m) See them well digested in Hargrave's notes on Co. Litt.


(1) M. 17 Edw. IV. 6 P. 18 Edw. IV. 4 T. 10 Hen. VII. 24, 26, Salk. 637.

(k) F. N. B. 88. Salk. 637. (9) 2 Sil. 8.

Finch, i. 162.
See book i. ch. 8.
Co. Litt. 144.

39 A free fishery is not an exclusive fishery. Melvin vs. Whiting, 7 Pick. 79. In rivers where the tide ebbs and flows, as well as in the sea, the right of taking fish is common to all the citizens. Parker vs. Cutter Mill-Dam Co., 7 Shep. 353. A several fishery in an arm of the sea, where the tide ebbs and flows, may be derived from prescription ; but such prescription must be clearly proved: every presumption is against it. Gould vs. James, 6 Conn. 369. A prescriptive right cannot be acquired by mere uninterrupted exercise and use, no matter for how long a time; because the person so fishing exercises, prima facie, only a right which belongs to him in common with all others. Challen vs. Dickerson, i Conn. 382. Collins vs. Benbury, 5 Iredell, 118. In order to raise the presumption of a grant of an exclusive right in any person, it should appear that all others have been kept out by him and his grantees. Ibid. Delaware and Maryland Railroad Co. vs. Stump, 8 Gill & Johns. 479. Day vs. Day, 4 Maryland, 262.

In North Carolina, waters, which are capable in fact of affording a passage to common sea-vessels are to be considered as navigable. Collins vs. Benbury, 5 Iredell, 118. So in Pennsylvania. Carson vs. Blazer, 2 Binn. 475. The owners of land on the banks of the Susquehanna and other principal rivers have not an exclusive right to fish in the river immediately in front of their land; but the right to fisheries in these rivers is vested in the State and open to all. Ibid. Shrunk vs. Schuylkill Navigation Co., 14 S. & R. 71.

The right to fish in unnavigable rivers belongs exclusively to the owners of the lands adjoining, extending to the middle of the river, under such restraints as government may impose,—the right of regulating the taking of fish, whether in navigable or other streams, residing in the State. Commonwealth vs. Chapin, 5 Pick. 199. Waters vs. Lillay, 4 Pick. 145. Ingram vs. Threadgill, 3 Den. 59.-SHARSWOOD.

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.

(1) Co. Litt. 2.

40 This appears to require some explanation. If an annuity (not charged on lands) be granted to a man and his heirs, it is a fee-simple personal. Co. Litt. 2, a. And Mr. Hargrave, in his note upon the passage just cited, says, though an annuity of inheritance is held to be forfeitable for treason, as an hereditament, (7 Rep. 34, b,) yet, being only per. sonal, it is not an hereditament within the statute of mortmain, (7 Edw. I. st. 2,) nor is it entailable within the statute de donis. Lord Coke again says, (Co. Litt. 20, a.,) “ If I, by my deed, for me and my heirs, grant an annuity to a man, and the heirs of his body, this concerneth no land, nor savoureth of the realty.” And see Earl of Stafford vs. Buckley, 2 Ves. Sen. 177. Holdernesse vs. Carmarthen, 1 Br. 382. Aubin vs. Daly, 4 Barn. & Ald. 59. Some of the diversities between a rent and an annuity are thus laid down, in the 30th chapter of the Doctor and Student, Dialogue I.:—“Every rent, be it rent-service, rentcharge, or rent-seck, is going out of land. Also, of an annuity there lieth no action, but only a writ of annuity: but of a rent the same action may lie as doth of land. Also, an annuity is never taken for assets, because it is no freehold in the law; nor shall it be put in execution upon a statute merchant, statute staple, or elegit, as a rent may." No doubt, when an annuity is granted, so as to bind both the person and real estate of the grantor, the grantee hath his election either to bring a writ of annuity, treating his demand as a personal one only, or to distrain upon the land, as for a real interest. Co. Litt. 144, b. The definition which Fitzherbert (N. B. p. 152) gives of an annuity is that it either pro ceeds from the lands or the coffers of another. Where it is charged upon land, it may be real or personal, at the election of the holder. If it is out of the coffers, it is personal only as to the remedy; but the property itself is real as to its descent to the heir. And this seems to be the only sense in which an annuity, for which the security is merely personal, can be called real estate. Turner vs. Turner, Ambl, 782.-Chitty.

For the doctrine that a man may have a real estate in an annuity, though his security is merely personal, the commentator cites no authority. The only semblance of authority is in some old cases in which the assignability of an annuity was discussed. Having perpetua! continuance, the better opinion seems to have been that it could be assigned, provided the consideration was executed and the word "assigns" contained in the original grant: neither of which circumstances would be of any account if it were real estate proper. 1 Inst. 144, b. Hargrave's note. Gerrard vs. Boden, Hetl. 80. Maund's case, 7 Rep. 28, b. Brooke, tit. Annuity, 37, 39. Perk. s. 101. Baker vs. Broke, Mo. 5, n. 18. Mr. Wooddesson says that the assignability of an annuity is rested on the ground of its amphibious nature and its not being mere personalty. Taking it for settled, however, that an annuity is assignable, it does not follow that it is not personal., . If it proves any thing, it only proves that it is not a chose in action. Properly speaking, perhaps the annuity itself does not lie in action; for it is a question whether debt or writ of annuity lies unless arrearages are due and unpaid. It is not, like a bond payable in future, debitum in presenti, solvendum in futuro. In annuity there is no present subsisting debt or duty: the debt or duty accrues only as the terms of payment elapse. Bro. Annuity, pl. 43. Digg's case, Mo. 133, n. 279. Doctr. Pl. 36, Annuity. Bodwell vs. Bodwell, Jones, 214.

In all other respects except that of descending to the heir, it bears none of the incidents and characteristics of real estate. Of this kind of inheritance a husband is not entitled to be tenant by the curtesy, nor the wife to be endowed. A grant of it to a corporation is not mortmain. 1 Inst. 32, a. 2, 6. It cannot be conveyed by way of use, though “hereditaments” is a word used in the statute of uses, for want of the necessary seisin. Jones, 127. Gilbert on Uses, 281. 2 Wils. 224. It cannot be entailed within the statute de donis, (1 Inst. 20, a.;) and the reason is, according to lord Coke, that it concerneth no land, nor savoureth of the realty. Though tenement be the only word used in the statute de donis, yet it includeth not only all corporate inheritances, but also all inheritances issuing out of any of those inheritances, or concerning, or. annexed to, or exercisable within, the same, though they lie not in tenure. If the grant be of an inheritance merely personal or to be exercised about chattels, and is not issuing out of land nor concerning any land or some certain place, such inheritance cannot be entailed. A grant of an annuity of inheritance to a man and the heirs of his body creates a fee-simple conditional at common law, and, after issue had, the grantee may alien so as to bar the pos. sibility of reverter. Stafford vs. Buckley, 2 Ves. Sen. 170. It is not within the statute of frauds so far as that affects real property. It will pass by a will not executed according to that statute. It cannot be barred, as a rent may, by suffering a recovery. An assize does not lie for it. Nor does it escheat. Nor is it liable to the same kind of execution go iudgments as real estate. Being a hereditament, however, descendible to the heir, it

*X. Rents are the last species of incorporeal hereditaments. The word rent or render, reditus, signifies a compensation or return, it being in the

[*41 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.(8) 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



but it may be reserved every second, third, or fourth year;(t) yet, as it is to be pro. duced 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."

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 some corporeal service incident to it, as at the least fealty or his feodal oath of fidelity.(z)

[*42 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 services, are therefore called rent-service. for these, in case they be behind, or arrere, at the day appointed, the lord may distrein of common right, without reserving any special power of distress; provided he hath in himself the reversion, or future estate of the lands and tenements, after the lease or particular estate of the lessee or grantee is expired.(a) A rent-charge is where the owner of the rent hath no future interest, or rever. sion expectant in the land: as where a man by deed maketh over to others his whole estate in fee-simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrere, or behind, it shall be lawful to distrein for the same. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed; and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it.(0)" Rent-seck, reditus siccus, or barren

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does not go to or form assets for the payment of debts in the hands of the executor or administrator. Doct. & Stud. Dial. I., c. 30. 1 Roscoe on Real Actions, 68, 35. 2 Woodd. 73. The case, however, which seems entirely conclusive in relation to this matter is Aubin vs. Daly, 4 B. & Ald. 59, where by letters-patent the king granted to the use of A., his heirs and assigns forever, an annuity of one thousand pounds to be paid out of his revenue of 44 per cent. at Barbadoes and the Leeward Islands: it was held that this annuity was personal property and passed under a will which purported to bequeath "all the rest, residue, and remainder of the testatrix's personal estate.”—SHARSWOOD.

11 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 Woodd. 69, where this passage is taken notice of.—CHRISTIAN.

*2 A clear rent-charge must be free from the land-tax. Bradbury vs. Wright, Doug. 625. -CHRISTIAN.

rent, is, in effect, nothing more than a rent reserved by deed, but without any clause of distress.“

There are also other species of rents, which are reducible to these three. Rents of assize are the certain established rents of the freeholders and ancient copyholders of a manor,(c) which cannot be departed from or varied. Those of the freeholders are frequently called chief-rents, reditus capitales; and both sorts are indifferently denominated quit-rents, quieti reditus; because thereby the tenant goes quit and free of all other services. When these payments were reserved in silver or white money, they were anciently called white-rents, blanchfarms, reditus albi,(d) in contradistinction to rents reserved in work, grain, or

baser money, which were called *reditus nigri, or black-mail.(e) Rack-rent *43] is only a rent of the full value of the tenement, or near it. A fee-farm rent is a rent-charge issuing out of an estate in fee, of at least one-fourth of the value of the lands, at the time of its reservation :(f) for a grant of lands, reserving so considerable a rent, is indeed only letting lands to farm in fee-simple, instead of the usual methods for life or years."

These are the general divisions of rents; but the difference between them (in respect to the remedy for recovering them) is now totally abolished; and all persons may have the like remedy by distress for rents-seck, rents of assize, and chief-rents, as in case of rents reserved upon lease.(g)*

Rent is regularly due and payable upon the land from whence it issues, if no particular place is mentioned in the reservation :(h) but in case of the king, the payment must be either to his officers at the exchequer, or to his receiver in the country.(i) And strictly the rent is demandable and payable before the time of sunset of the day whereon it is reserved ;(k) though perhaps not absolutely due till midnight.(*

9.2 Inst. 19.
1d, In Scotland this kind of small payment is called

(6) Stat. 4 Geo. II. c. 28.

() Co. Litt. 201. blanch-holding, or reditus alba firme.

4 Rep. 73. ( 2 Inst. 19.

(5) Co. Litt. 302. 1 Anders. 253. Co. Litt. 143.

() 1 Saund. 297. Prec. Chanc. 555. Salk. 578. If land on which a rent-charge is granted is afterwards sold in parcels, and the grantee levies the whole rent on one purchaser, the court of chancery will relieve him by a contribution from the rest of the purchasers, and restrain the grantee from levying upor: him only. Cary, 2, 92.CHITTY.

* The description of a rent-charge is correct as applied to England, where the statute of quia emptores forbade subinfeudation; for there is therefore no connection of tenure between the grantor and grantee. In Pennsylvania, however, this statute was never in force; and although the connection of tenure is merely nominal,- although the whole possibility of reverter upon failure of heirs is now vested in the commonwealth,—yet that mere transfer has not altered the character of the estate or the legal incidents thereto annexed. In Pennsylvania, therefore, a rent-service is not only where there is a reversion in the owner of the rent, as where a man grants an estate for life or years, re serving a rent, but also where he parts with the whole fee-simple, reserving a rent. Distress is incident thereto of common right. A rent-charge is confined to the cases where the owner of land grants a rent thereout to a stranger, and by a special clause grants him also a right to distrain for the rent if it should be in arrear: without such a clause it would be a rent-seck. Ingersoll vs. Sergeant, 1 Whart. 337. Franciscus vs. Reigart, 4 Watts, 98. Kenege vs. Elliott, 9 Watts, 262.-SHARSWOOD.

* Mr. Hargrave is of opinion that the quantum of the rent is not essential to create a fee-farm, (Co. Litt. 144, n. 5,) where he differs from Mr. Douglas, who had thought that a fee-farm was not necessarily a rent-charge, but might also be a rent-seck. Doug. 627. n. 1.-CHRISTIAN.

A fee-farm rent is not necessarily a rent-charge. Mr. Hargrave indeed thought that it could only be a rent-service, and that the quantum of the rent was immaterial. Co. Litt. 143, n. 235. But in the case of Bradbury vs. Wright, Douglas Rep. 4 ed. 627, are notes by the reporter himself and the late learned editor, which explain the mistake both of Blackstone and Hargrave, and show, I think, satisfactorily, that the former is correct in his account of the rent, except in calling it a rent-charge, which it may, but need not necessarily, be.-COLERIDGE.

45 That is, for such as has been paid for three years within twenty years before the passing of that act, or for such as have been since created. 4 Geo. II. c. 28, s. 5. Doug. 627.-CHRISTIAN.

* If the lessor dies before sunset on the day upon which the rent is demandable, it is

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