must be acknowleged, that the rights and diftinctions of the three species of fishery are very much confounded in our lawbooks; and that there are not wanting refpectable authorities which maintain, that a feveral fishery may exist distinct from the property of the foil, and that a free fishery implies no exclufive right, but is fynonymous with common of piscary.

VIII. CORODIES are a right of sustenance, or to receive certain allotments of victual and provifion for one's maintenance". In lieu of which (especially when due from ecclefiaftical perfons) a pension or fum of money is fometimes substituted. And these may be reckoned another fpecies of incorporeal hereditaments; though not chargeable on, or ifluing from, any corporeal inheritance, but only charged on the perfon of the owner in refpect of fuch his inheritance. To these may be added,

IX. ANNUITIES, which are much of the fame nature; only that these arife from temporal, as the former from fpiritual, perfons. An annuity is a thing very diftinct from a rent-charge, with which it is frequently confounded: a rentcharge being a burthen impofed upon and iffuing out of lands, whereas an annuity is a yearly fum chargeable only upon the perfon of the grantor P. Therefore, if a man by deed grant to another the fum of 20 l. per annum, without expreffing out of what lands it fhall iffue, no land at all fhall be charged with it; but it is a mere perfonal annuity: which is of fo little account in the law, that, if granted to an eleemofynary corporation, it is not within the statutes of mortmain ; and yet a man may have a real estate in it, though his fecurity is merely perfonal (24).

in See them well digefted in Hargrave's notes on Co. Litt. 122. (23) n Finch. L. 162.

• See book 1. ch. 8.

P Co. Litt. 144.
q Ibid. 2.

(23) The alterations made in the text in confequence of the obfervations of Mr. Hargrave upon this fubject, prove the candour and liberality of the learned Judge, and his readiness to correct any inaccuracy, when it was pointed out to him.

(24) See annuities for lives, page 461, 7.

X. RENTS

X. RENTS are the laft fpecies of incorporeal hereditaments. The word rent or render, reditus, fignifies a com penfation or return, it being in the nature of an acknowlegement given for the poffeffion of fome corporeal inheritance. It is defined to be a certain profit iffuing yearly out of lands and tenements corporeal. It must be a profit; yet there is no occafion for it to be, as it usually is, a fum of money for fpurs, capons, horfes, corn, and other matters may be rendered, and frequently are rendered by way of rent1. It may alfo confift in fervices or manual operations; as, to plough fo many acres of ground, to attend the king or the lord to the wars, and the like; which fervices in the eye of the law are profits. This profit muft alfo be certain; or that which may be reduced to a certainty by either party. It must also issue yearly; though there is no occafion for it to iffue every fucceffive year; but it may be referved every fecond, third, or fourth years; yet, as it is to be produced out of the profits of lands and tenements, as a recompenfe for being permitted to holdor enjoy them, it ought to be referved yearly, becaufe thofe profits do annually arife and are annually renewed. It must iffue out of the thing granted, and not be part of the land or thing itfelf; wherein it differs from an exception in the grant, which is always of part of the thing granted'. It muft, lastly, iffue out of lands and tenements corporeal; that is, from fome inheritance whereunto the owner or grantee of the rent may have recourse to distrain. Therefore a rent cannot be referved out of an advowfon, a common, an office, a franchife, or the like ". But a grant of fuch annuity or fum may operate as a perfonal contract, and oblige the grantor to pay the money referved, or fubject him to an action of debt (25):

q Co. Litt. 144.

Ibid. 142.

s Ibid. 47.

t Plowd. 13. S Rep. 71.

u Co. Litt. 144.

w Ibid. 47.

(25) There can be no doubt but the leffee of tithes, an advowfon, or any incorporeal hereditament, would be liable to an action of debt for the rent agreed upon. See 2 Woodd. 69, where this paffage is taken notice of

though.

though it doth not affect the inheritance, and is no legal rent

in contemplation of law.

THERE are at common law three manner of rents, rentservice, rent-charge, and rent-feck.

Rent-fervice is fo called because it hath fome corporal fervice incident to it, as at the [ 42 ] least fealty or the feodal oath of fidelityy. For, if a tenant holds his land by fealty, and ten fhillings rent; or by the fervice of ploughing the lord's land, and five fhillings rent; thefe pecuniary rents, being connected with personal services, are therefore called rent-fervice. And for thefe, in cafe they be behind, or arrere, at the day appointed, the lord may distrein of common right, without referving any special power of diftrefs; provided he hath in himself the reverfion, or future eftate of the lands and tenements, after the leafe or particular eftate of the leffee or grantee is expired. A rent-charge, is where the owner of the rent hath no future interest, or reverfion expectant in the land: as where a man by deed maketh over to others his whole estate in fee fimple, 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 diftrein for the fame. In this cafe 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 (26). Rent-feck, reditus ficcus, or barren rent, is in effect nothing more than a rent reserved by deed, but without any claufe of distress.

THERE are also other species of rents, which are reducible to these three. Rents of affife are the certain established rents of the freeholders and ancient copyholders of a manor, which cannot be departed from or varied. Those of the

(26) A clear rent-charge must be free from the land-tax.

Doug. 60z.

VOL. II.

E

freeholders

exclufive right of fishing in a public river, is also a royal franchife; and is confidered as fuch in all countries where the feodal polity has prevailed: though the making fuch grants, and by that means appropriating what feems to be unnatural to reftrain, the ufe of running water, was prohi bited 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 forefts to be difafforefted. This opening was extended, by the fecond and third charters of Henry III, to thofe also that were fenced under Richard I; fo that a franchise of free fishery ought now to be at least as old as the reign of Henry II. This differs from a feveral fishery; because he that has a feveral fishery muft alfo be (or at least derive his right from) the owner of the foil, which in a free fishery is not requifite (22). It differs alfo from a commen of pifcary before-mentioned, in that the free fishery is an exclu [4] five right, the common of pifcary is not fo: and therefore, in a free fishery, a man has a property in the fith before they are caught; in a common of pifcary not till afterwards *. Some indeed have confidered a free fishery not as a royal franchife, but merely as a private grant of a liberty to fish in the feveral fithery of the grantor'. But to confider fucli right as originally a flower of the prerogative, till restrained by magna carta, and derived by royal grant (previous to the reign of Richard I.) to fuch as now claim it by prescription, and to diftinguish it (as we have done) from a feveral and a commen of fishery, may remove fome difficulties in respect to this matter, with which our books are embarraffed. For it

e Seld. Mir. Clauf. I. 24. Dufresne. V. 503. Crag. de Jur. feod. II. 8. 15. cap. 47. ed. Oxon.

& cap. 20.

h 9 Hen. II. c. 16.

iM. 17 Edw. IV. 6. P. 18 Edw. IV. 4. T. 10 Hen. VII. 24.26. Salk.6374 k F. N. B. 88. Salk. 637. J 2 Sid. 8.

to be fued as a trefpaffer; but the right of free-warren can only exift by the king's grant, or by prefcription, from which fuch a grant is prefumed. Manw. Warren. Fareft, pl. 43.

(22) A fubje&t may have, by prefcription, a right to a feveral hery in an arm of the fea. 4 T. R. 437

must be acknowleged, that the rights and diftinctions of the three species of fishery are very much confounded in our lawbooks; and that there are not wanting refpectable authorities which maintain, that a several fishery may exist distinct from the property of the foil, and that a free fishery implies no exclufive right, but is fynonymous with common of pifcary.

VIII. CORODIES are a right of fuftenance, or to receive certain allotments of victual and provision for one's maintenance". In lieu of which (especially when due from ecclefiaftical perfons) a penfion or fum of money is sometimes substituted. And these may be reckoned another species of incorporeal hereditaments; though not chargeable on, or iffuing from, any corporeal inheritance, but only charged on the perfon of the owner in refpect of fuch his inheritance. To these may be added,

IX. ANNUITIES, which are much of the fame nature; only that these arife from temporal, as the former from fpiritual, perfons. An annuity is a thing very diftinct from a rent-charge, with which it is frequently confounded: a rentcharge being a burthen impofed upon and iffuing out of lands, whereas an annuity is a yearly fum chargeable only upon the perfon of the grantor P. Therefore, if a man by deed grant to another the fum of 20 l. per annum, without expreffing out of what lands it fhall iffue, no land at all fhall be charged with it; but it is a mere perfonal annuity: which is of fo little account in the law, that, if granted to an eleemofynary corporation, it is not within the ftatutes of mortmain 9; and yet a man may have a real estate in it, though his fecurity is merely perfonal (24).

See them well digefted in Hargrave's notes on Co. Litt. 122. (23) n Finch. L. 162.

• See book 1. ch. 8.
P Co. Litt. 144.

q Ibid. 2.

(23) The alterations made in the text in confequence of the obfervations of Mr. Hargrave upon this fubject, prove the candour and liberality of the learned Judge, and his readinefs to correct any inaccuracy, when it was pointed out to him.

(24) See annuities for lives, page 461, pot.

X. RENTS