man has a property in the fish before they are cau in a common of piscary not till afterwards." Some in have considered a free fishery not as a royal franchise merely as a private grant of a liberty to fish in the se fishery of the grantor. But to consider such rig originally a flower of the prerogative, till restraine magna carta, and derived by royal grant (previous t reign of Richard 1.) to such as now claim it by pres tion, and to distinguish it (as we have done) from a se and a common of fishery, may remove some diffic in respect of this matter, with which our books embarrased. For it must be acknowledged, that the and distinctions of the three species of fishery ar much confounded in our law-books; and that the not wanting respectable authorities? which maintain a several fishery may exist distinct from the prope the soil, and that a free fishery implies no exclusive but is synonymous with common of piscary.

By the 2 & 3 W. 4, c. 71, s. 1, it is enacted, t claim which may be lawfully made at the common custom, prescription, or grant, to any profit or to be taken and enjoyed from or upon any land King, shall when such profit or benefit shall hav actually taken and enjoyed by any person, cl right thereto without interruption for the full pe thirty years, be defeated or destroyed by shewin that such profit or benefit was first taken or enjo any time prior to such period of thirty years; but theless such claim may be defeated in any other v which the same was then liable to be defeated; an such profit or benefit shall have been so taken a joyed as aforesaid, for the full period of sixty yea right thereto shall be deemed absolute and indef unless it shall appear that the same was tak enjoyed by some consent or agreement expressl for that purpose by deed or writing.

VIII. Corodies are a right of sustenance, or to certain allotments of victual and provision for one'

EREDITAMENTS.

[Book

CH. II.]
tenance.

fish before they are caught:
ill afterwards." Some indeed
y not as a royal franchise, but
a liberty to fish in the several
ut to consider such right si
rerogative, till restrained by
y royal grant (previous to the
as now claim it by prescrip
as we have done) from a several
may remove some difficulties
with which our books are
acknowledged, that the rights
ree species of fishery are very
law-books; and that there are
horities which maintain, that
of
distinct from the property
nery implies no exclusive right,
mmon of piscary.

.71, s. 1, it is enacted, that no
lly made at the common law by
grant, to any profit or benefit
from or upon any land of the
rofit or benefit shall have been

-ed by any person, claiming
erruption for the full period of
or destroyed by shewing only
t was first taken or enjoyed at
riod of thirty years; but never
e defeated in any other way, by
liable to be defeated; and when
all have been so taken and en-
he full period of sixty years, the
emed absolute and indefeasible,
hat the same was taken and
tor agreement expressly made
r writing.
ght of sustenance, or to receive
al and provision for one's main-

P See them well digested in Har grave's notes on Co. Lit. 122

OF INCORPOREAL HEREDITAMENTS.

In lieu of which (especially when due from ecclsiastical persons) a pension or sum of money is sometimes substituted. 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

ties.

IX. Annuities, which are much of the same nature, IX. 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. Therefore, if a man by deed grant to another the sum of 201. per aunum, 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; and yet a man may have a real estate in it, though his security is merely personal.

requis

X. Rents are the last species of incorporeal heredita- X. R ments. The word rent or render, reditus, signifies a compensation or return, it being in the nature of an acknowlegement given for the possession of some corporeal inheritance." 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. 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

q Finch, Law. 162.
s Co. Litt. 144.

t Ibid. 2.

c 2

u Ibid. 144.

v Co. Litt. 142.

20

OF INCORPOREAL HEREDITAMENTS. [Boo

is no occasion for it to issue every successive year: it may be reserved every second, third, or fourth yea yet, as it is to be produced out of the profits of la and tenements, as a recompense for being permi to hold or enjoy them, it ought to be reserved yea because those profits do annually arise and are annu renewed. It must issue out of the thing granted, not be part of the land or thing itself; wherein it di from an exception in the grant, which is always of of the thing granted. It must, lastly, issue ou lands and tenements corporeal; that is, from some [ 42 ] heritance whereunto the owner or grantee of the may have recourse to distrain. Therefore a rent ca be reserved out of an advowson, a common, an offic franchise, or the like; (although it may be out of ti with all properties of rent, except distress.) But a g of such annuity or sum may operate as a personal tract, and oblige the grantor to pay the money rese or subject him to an action of debt: though it not affect the inheritance, and is no legal rent in con plation of law.

Of three kinds: service.

rent

There are at common law a three manner of r rent-service, rent-charge, and rent-seck. Rent-se is so called because it hath some corporal service dent to it, as at the least fealty or the feodal oa Rent-charge. fidelity. A rent-charge, is where the owner 01 rent hath no future interest, or reversion expecta the land; as where a man by deed maketh over to o his whole estate in fee simple, with a certain rent able thereout, and adds to the deed a covenant or of distress, that if the rent be arrere, or behind, it be lawful to distrain for the same. In this case the is liable to the distress, not of common right, b virtue of the clause in the deed: and therefore called a rent-charge, because in this manner the 1 charged with a distress for the payment of it.c seck, reditus siccus, or barren rent, is in effect n

Rent-seck.

[Воон

ALL lay tenures are in effect reduced to two divis free tenure in common socage, and base tenure, by of court roll, called copyhold. And it will be the object of this chapter to explain what these are, toud very briefly on their origin and history.

By the policy of our laws, originally derived the feudal system, almost all the real property of kingdom is supposed to be granted by, dependent and holden of some superior lord, by and in con ration of certain services to be rendered to the by the tenant or possessor of this property. The holden is therefore stiled a tenement, the posse thereof, tenants, and the manner of their possessi tenure. Thus all the land in the kingdom is suppos be holden, mediately or immediately, of the King; w stiled the lord paramount, or above all. And this ciple of law it is not intended to disturb.m

"Tenements (says Bracton) are of two kinds, f Tenements of tenement, and villenage." And of frank tenements, are held freely in consideration of homage and k service; others in free-socage, with the service of only." And again, "of villenages some are pure others privileged. He that holds in pure villenage do whatsoever is commanded him, and always be bou an uncertain service. The other kind of villenage is