1. RIGHTS TO REAL PROPERTY. CHAP. IV. for the property thereof remains in the executor or whoever was at the charge of the funeral. (1) A monument cannot be placed in any particular part of a church or churchyard without the rector's consent. (m) And where a testator devised his real estates to sell and expend 2000/. in erecting a monument in the parish church of St. John, Southwark, and 21. to the rector, on condition of his permitting such erection, and 1007. to Dr. Johnson for writing an epitaph, it was held that this was not a devise within the statute of mortmain; and that as the purpose failed by the rector's refusing for many years to allow the monument to be erected, though a succeeding rector was willing to consent, the heir of the testator was entitled to the 2000l. and the 217. (n) 4. Manor. (0) 66 4. A manor, so described, without any other terms, is considered corporeal property, and ejectment for it by that name, without other description, is sustainable, it being inferred that besides the incorporeal manorial rights of service, such as quit rent, &c. there is a mansion and demesne lands; (p) and yet there may be a manor by reputation, although extinct for the principal purposes by defect of suitors, but sufficient to enable the claimant to appoint a gamekeeper, although there be no demesne lands, or other tangible incorporeal property, nor even any freehold suitors left; (q) but as the term manor" may denote a mere franchise and right to hold courts, and have suit and service rendered or quit rents paid by copyholders and others, it has therefore been contended that ejectment is not sustainable for a manor generally, and that the quantity and nature of the land, or other tangible property therein, for which an ejectment properly lies, ought also to be stated; (r) and the latter mode of declaring in ejectment for a manor is certainly now more usually adopted. ($) It is clear that a lord of a manor, in case of an inclosure, is entitled to an allotment, not only in respect of his demesne lands, but also in respect of his mere right of franchise as lord of the manor. (t) It should seem that a manor is not eo nomine rateable to the poor under the 43 Eliz. c. 3, s. 2, which, speaking of property, enumerates (1) 3 Inst. 110; 12 Co. 113; 1 Hale, P. C. 515; 2 Bla. C. 429. (m) Ante, 50, 51, 52, Burial. (n) Mellick v. President Asylum, Jacob's Rep. 180. (0) See post, Quit Rents; and see 3 Thomas, Co. Lit. Index tit. Manor; and 1 Id. 659, G. (p) Latch. 61; Lil. R. 301; Run. Eject. 2 ed. and Adams's Eject. 3 ed. 29; and see 8 Bar. & Cres. 25, ante, 163. (9) 10 East, 259. New freehold suitors cannot be created by the lord's granting parts of his demesne lands, so as to revive the courts; Willes, 614. (r) Latch. 61; Lil. R. 501; Hetl. 146; Selw. N. P. 4 ed. 665. (s) 2 Chit. Pl. 878. occupiers of "lands and houses," and therefore a lord of a manor is not rateable for the quit rents and casual profits of the manor, and indeed if he were, the property, or at least the quit rents, would be rated twice; viz. in his hands as lord of the manor, and also in the hands of his tenant. (u) The word "manor" in a deed, without the words "with the appurtenances," pass all that is at the time of the grant parcel of the manor and all its perquisites. (x) CHAP. IV. I. RIGHTS TO REAL and commons of 5. The wastes and commons of a manor in every respect re- 5. The wastes semble the private lands of a freeholder, excepting that they the manor. are usually not inclosed and are subject to certain easements, such as rights of common, of various descriptions, over the same. In every other respect the lord of the manor may treat them as his "closes," and support trespass for entering his close even against a commoner, if he enter for any other purpose than in the legal exercise of his right of common. (y) He has a right to inclose and approve, provided he leave a sufficiency of common, but not otherwise unless by special custom.(z) But such new inclosures cannot, without special custom, be granted out, either as copyhold, (a) or as long leasehold. (b) The recent act especially declares, that a lord of a manor shall be exclusively entitled to the game on the wastes and commons. (c) But a lord of a manor as such can legally sport only over his own demesne lands, and wastes, and commons; and he has no right in that character, either himself, or by his gamekeeper, to enter the lands of freeholders or copyholders, or their tenants, within his manor.(d) house, mes gage. 6. The terms, "mansion,," "dwelling-house," "house," 6. Mansion, "messuage," and "burgage," (in a borough, (e)) are, in general, dwelling-house, synonymous, and any distinction between the terms, mes- suage, or bursuage," or "house," in their legal import, has been justly refuted. (f) A cottage is the same in law, but importing a smaller and inferior building, at one time prohibited, but now to be encouraged. (g) By the grant of a cottage, it is said, passes a small dwelling house, that hath no land belonging to 1. RIGHTS TO REAL CHAP. IV. it.(h) These terms are respectively very comprehensive, for by a conveyance of a "messuage," or "house," without other PROPERTY. words, other adjacent buildings, curtilage, orchard, garden and even an acre or more of land, would pass. (i) For criminal purposes it is essential that the building should have been used for residence and sleeping therein; (k) and though to subject the building to assessment towards the relief of the poor, or to the assessed taxes, a very slight and occasional occupation is sufficient; yet to acquire a settlement, a bonâ fide occupation is essential. (m) The term, "messuage," it is said, includes a church, and that a church or chapel ought to be described as a messuage, in legal proceedings to recover the possession, (n) though we have seen that now they might properly be described by their usual name, as in indictments for sacrilege. (o) And, indeed, it seems the better opinion that they could not be treated as a dwelling-house, so as to render the stealing from the same technically burglary; (p) and the 7 & 8 Geo. 4, c. 29, s. 11, in describing burglary, merely mentions" dwellinghouses," and as there is an express clause for stealing chattels in a church or chapel, it seems clear that a church or chapel cannot be treated as a dwelling-house, as regards the offence of burglary.(q) The term "mansion-house," in its common sense, not only includes the dwelling-house, but also all out-houses, as barn, stable, cow-house, dairy-house, if they be parcel of the mansion, though they be not under the same roof or joining contiguous to it. (r) By a devise of "messuages with all houses, barns, stables, stalls, &c. that stand upon or belong to the said messuages;" even the lands belonging to the messuages will pass; (s) and where a person being tenant for years of a house, garden, stables, and coal-pen, bequeathed in these words, "I give the house I live in, and garden to B." it was held that the stables and coal-pen, occupied by the testator, together with the house, passed without being expressly named, though the testator used them for the purposes of trade (h) Shep. T. 94. (i) Co. Lit. 56, b. n. (1) Hargrave; 1 Thomas's Co. Lit. 5, b. note (1); 2. Id. 215, 216; and note (35) as to the large import of the word messuage. (k) Rex v. Martin, Russ. & R. C. C. 108; 1 Leach, 185; 2 East, P. C. 498; 8 B. & C. 461. (1) 4 T. R. 477; 10 East, 354; Burn's J. Poor, 51; tit. Taxes. (m) Burn's J. Poor, 574. (n) 11 Coke, 26; 2 Esp. N. P. 528; 1 Salk, 256; 8 B. & C. 25. (0) 7 & 8 Geo. 4, c. 29, ante, 164. (p) Hawk. P. C., B. 1, c. 38, s. 17. (q) 7 & 8 Geo. 4, c. 29, s. 10. It is also to be observed, that money is not mentioned in that clause. (r) 1 Hale, P. C. 558, 559; Burn's J. Burglary; see also, 1 Thomas's Co. Lit. 215, 216. (s) 3 Wils. 141; 2 Bla. R. 726. as well as for the convenience of his house; (t) and under a devise of "all his messuage, or dwelling-house, in High-street, and all and every his buildings and hereditaments in the same street," it was held that not only the house in that street, but two cottages in an adjoining back street passed, the communication being from the former, and the testator having only one messuage in High-street. (1) But it is said that the leading distinction between buildings and land is this, that by the name of a "castle," "messuage," "toft," "croft," or the like, nothing else will pass, except what falls with the utmost propriety under the terms made use of; but that by the name of land, which is nomen generallissimum, every thing terrestrial will pass.(x) Fixtures annexed to a messuage, building, or land, have already been considered. (y) We may here notice that by a conveyance of a "messuage with the appurtenances," fixtures usually removeable will pass to the purchaser, unless disannexed and removed before the conveyance has been executed. (2) A conveyance or demise of a messuage would impliedly pass every part under the same roof, but not so if it be proved that at the time of the demise a room was separated by a wooden partition, and had not been occupied with it for many years. (a) CHAP. IV. I. RIGHTS TO REAL PROPERTY. other criminal With respect to the criminal law, and the offence of burglary, Burglary and it can only be committed in a "dwelling-house," or a building offences, with part thereof, having a communication between such building respect to a dwelling-house. and the dwelling-house, either immediate or by means of a covered and enclosed passage leading from one to the other." (b) It must be a finished building intended as a house, and actually used and inhabited as such, and not a mere intended house, (c) for the capital punishment of burglary was intended to protect, not merely property, but the actual occupant from the terror of disturbance during the hours of darkness and repose. (d) But any permanent building, ordinarily used for residence and sleeping, may be a "dwelling-house," as respects the offence of burglary; as chambers in an inn of court, (e) a loft over a stable, used as the abode of a coachman, which he rents for his use; (ƒ) and a room used by a lodger for residence and I. RIGHTS TO REAL CHAP. IV. sleeping, if the landlord does not sleep under the same roof; (g) and a dwelling-house may be so divided as to form two or more PROPERTY. dwelling-houses, in the meaning of the word, in the definition of burglary; (h) and if there be several inmates, and they respectively lock the doors of their respective rooms, although they all use one common outer-door, the apartments of such inmates are considered as their respective dwelling-houses, provided the common landlord does not himself reside and sleep in the house. (i) The describing the building in an indictment for burglary merely as a "house" would be defective; (k) and if the burglary were in a building adjoining the dwelling-house, and connected therewith as above, it must be either laid in the dwelling-house generally, (and which seems preferable) or "in a building, part of the dwelling-house, and communicating therewith immediately," or "communicating with such dwelling-house by means of a covered and inclosed passage, leading from the same building to the said dwellinghouse."(7) So the house must be actually used as a dwelling and for sleeping at the time of the burglary; for a house under repair, or a building merely intended and constructed as a dwellinghouse, in which no one lives, though the owner's property is deposited there, is not a place in which burglary can be committed, for it cannot be deemed his "dwelling-house" until he has taken possession and began to inhabit it; (m) nor will it make any difference if one of the workmen, engaged in the repairs, sleep there at night in order to protect it;(n) nor though the house is ready for the reception of the owner, and he has sent his property into it, preparatory to his own removal, will it become for this purpose his dwelling-house. (0) So if the landlord purchase the furniture of his outgoing tenant, and procure a servant to sleep there, in order to guard it, but without any intention of making it his own residence, a breaking into the house will not amount to burglary (p) And the mere casual use of a tenement will not suffice;(q) and where neither the owner nor any of his family have slept in a house, it is not his dwelling-house, so as to make the breaking it burglary, though he had used it for his meals and all the |