I. RIGHTS TO REAL stitution of an annual rent or consideration will not discharge CHAP. IV. the rector's liability; (k) and if a person be entitled to the tithe of all fish caught in the parish, or to oblations and other offerings PROPERTY. which constitute the rectorial or vicarial dues, he is rateable in respect thereof. (1) A summary mode of enforcing payment of tithes, oblations, and compositions, not exceeding 107., is given by statutes by complaint to two justices of the peace, (m) and against Quakers to the extent of 50%. Tithes in the hands of lay impropriators may be held in feesimple, fee-tail, for life, or years, and these are assets for the payment of debts, and are governed by the same rules of descent as temporal inheritances, and have all other similar incidents belonging to them; they are alienable in the same manner as other real estate, and are included in the statute of uses, under the word "hereditaments." (n) 8, and 9. With respect to offices and dignities, (two other in- 8. Offices. corporeal hereditaments,) as they are not of great general im- 9. Dignities. portance, nor are they daily subjects of legal discussion, we shall merely mention them, referring to the works in which they have been particularly discussed. (o) We must, however, observe, that the offices here referred to are those in which a person may have an estate to him and his heirs, or for life, and legal fees attached to them, and in respect of which, if a disturber receive such fees, and not merely gratuities, the owner might support an action to recover the fees as received to his use, without resorting to the ancient writ of assize of office. (p) Ministerial offices may be in reversion, but in general not when they are judicial. 10. Franchises and liberties are very various, and almost in- 10. Franchises. finite, but always denote a royal privilege subsisting in the hands of a subject, and which originated in an express grant from the crown, or may now be presumed after length of time, and therefore may be prescribed for. They are principally to hold courts, (q) to have a manor, to have waifs, wrecks, estrays, treasure trove, royal fish, forfeitures, and deodands; to have an (k) 4 B. & Cres. 467; 6 Dowl. & R. 467, S. C. (1) 3 T. R. 385. (m) 7 & 8 W. 3, c. 6 and 34; and 53 Geo. 3, c. 127; 1 Geo. 4, st. 2, c. 6; 7 Geo. 4, c. 15; Burn's J., Tithes. (n) H. Chit. Descent. 200; but see ante, 206, note (n). (0) See 2 Bla. C. 36 to 44; Cruise's Digest, tit. Offices; 1 Tho. Co. Lit. 208, 236, &c.; Com. Dig. Offices. As to ac- (q) 9 East's R. 335, 340. I. RIGHTS CHAP. IV. exclusive bailiwick; or liberty to have a fair, (r) or market, or right of taking tolls; or to have a forest, chase, park, freewarren, or fishery endowed with a privilege of royalty. (s) We will consider the latter as well respecting the civil rights as criminal injuries and remedies. Forest, Chase, Chases. Parks. (s) Criminal of fences relating thereto. Franchises relating to game are forests, purlieus, chases, parks, and free-warren, the civil rights and criminal provisions respecting which we will here shortly notice. Forestal rights, properly so called, are not grantable to a subject. (u) It is said that there are only thirteen legal chases in England. (x) A chase is an open tract of country privileged for game, and usually less than a forest, and ought not to be inclosed. It does not necessarily give the owner any interest in the land, but merely in the beasts and game therein, and the exclusive right to pursue the same; it may be, and usually is, claimed over other persons' grounds, though it may, like free-warrens, be over the owner's land, without merging in the higher territorial property. (y) A legal park, properly so called, is a large tract of inclosed ground privileged for wild beasts of chase, and must be founded on the king's express grant, or claimed by prescription, and it is not strictly legal to erect a park de novo without such grant. (a) It is said there are only 781 legal parks in England, (b) though no information or criminal proceeding could be instituted for so doing. (c) When legally made, it has some peculiar privileges and properties, namely, the owner or keeper of a lawful park may legally shoot a self-hunting dog in pursuit of the deer, which no owner of other land, or of an illegal park, could do, (d) and deer in a lawful park go to the heir, and not to the executor, (e) unless where the deceased owner was merely a lessee for years. (f) As respects criminal injuries, and the protection afforded to these places, it will be observed, that parks are not expressly mentioned, and the only distinction between the several (r) Trespass lies against a person for disturbing plaintiff in the profits of a fair, by erecting a toll booth, without saying quare clausum fregit, Smith v. Pearson, Woodfall, L. & T. 542. (s) 2 Bla. C. 37, 38; Craise's Dig. Index, Franchise; Com. Dig. Franchise. (t) Manw. 143; and see in general Chitty, Game Law; Burn's J., Game. (u) 5 Price, 269; see Manw. on Forests in general. (r) 1 Wood. Vin. Lee, 129. (y) Manw. 49 to 147; see further as to Chase, 3 Tho. Co. Lit. Index, Chase. (b) Bro. Ab. tit. Action sur le Statute, pl. 48; Co. Lit. 223; 2 Inst. 199; 11 Coke's R. 86. (c) 2 Ld. Raym. 1409; 1 Stra. 637. (e) 1 Inst. 8; Toller, 192, ante. places is, whether the same be or not inclosed. Thus the unlawfully and wilfully coursing, hunting, snaring, or carrying away, or killing or wounding, any deer kept or being in the inclosed part of a forest, chase, or purlieu, or in any inclosed land, wherein deer shall be kept, is felony, punishable as simple larceny; (h) and if in the uninclosed part of any forest, chase, or purlieu, the offence is punishable before a justice with 50%. penalty, and a second offence is felony; (h) and if venison, upon a search warrant, be found in possession of a person without his accounting for his lawful possession, he forfeits 201. ; (i) and the setting any snare, or breaking down a fence, is a 20l. penalty; (k) and persons unlawfully entering such places, with intent to take deer, may with their guns and dogs be seized by the keepers and their assistants for the use of the owner; (7) and the beating or wounding any deer-keeper is felony. (1) CHAP. IV. 1. RIGHTS TO REAL PROPERTY. Free-warren is a franchise, founded on express grant from the Free-warren.(m king, or a prescription which supposes it. It is an exclusive privilege to preserve and kill certain beasts and fowls of warren (such as hares, rabbits, roes, partridges, pheasants, rails, and quails, woodcocks, and mallards, and herons, but not grouse,) (n) in a certain tract originally of open country, even in exclusion of the owners of the soil, and being such an exclusive right, the owner of the free-warren may support trespass against any person, even the owner of the land, who pursues game of warren within the district, although no such game be killed, and may recover full costs, although the damages be under forty shillings, (o) because it is impossible that the title to the soil can ever come in question, for though both may unite in one person, yet the title to the free-warren is always collateral to that of the land, and a man may have and frequently does claim a freewarren in alieno solo, and unity of seisin of the land and freewarren does not extinguish the latter. (p) It is a right that may at this day be granted by the king to a person over his own land, though such a modern grant is not usual. (q) The owner of a free-warren may legally kill self-hunting dogs that (h) 7 & 8 Geo. 4, c. 29, s. 26, &c. (m) There are very few legal free-warrens in the kingdom, though very frequently conveyances profess to pass the right; see in general, 2 Bla. C. 38; Com. D. Chase, F.; Co. Lit. 233; 1 Chitty, Game L. 19 to 23. (n) Grouse are not birds of warren, Manw. 44; Co. Lit. 233; 7 B. & Cres. 36, (0) 2 Salk. 637; 2 Bla. R. 1150; 5 Taunt. 422; 2 M. & S. 499; 7 B. & C. (p) 3 Dyer, 326; Chitty, G. L. 23; CHAP. IV. Franchises of free fishery, several fishery, and common of fishery. haunt the warren. (r) The game killed by any person in a freewarren instantly become the property of the owner. (s) The rabbits and game go to the heir, and not to the executor of the owner, unless he were a mere lessee. (t) Twenty years' undisturbed exercise of a free-warren may, as in case of other incorporeal right, afford presumptive evidence of a lawful and perfect right of free-warren. (u) But even when an express grant of free-warren can be proved, yet if the freeholders and others within the tract of country over which the free-warren is claimed have repeatedly, without interruption, or without being sued with effect by the owner of the free-warren for so doing, killed game, though on their own lands, a release or some extinguishment of the free-warren may be presumed. So that the owner of a strict legal free-warren must, in order to continue his right, watchfully prosecute every material invasion of it. And claims of free-warren, though frequently recited and conveyed in title deeds, can but rarely be supported in evidence. The rights of free fishery, several fishery, and common of fishery, have also been considered as franchises. 1. Free fishery is an exclusive right of fishery in a public navigable river, or sometimes in an arm of the sea, originating in a grant from the king. (x) 2. A several fishery is an exclusive right to fish usually in a private river or water, not navigable, and may be confined to the right to fish there, or may also include the ownership of the soil, and ejectment may in some cases be supported for a several fishery, (y) whereas the owner of a free fishery never has any interest in the soil. (z) A several fishery in a navigable river is an incorporeal and not a territorial hereditament, and a term for years in it cannot be created without deed; (a) but such a several fishery in a navigable river or arm of the sea may pass as appurtenant to a manor, (b) and such a right of fishery may be apportioned and lost as to a part, but reserved as to the residue. (c) 3. Common of fishery does not import any exclusive right, nor any property in the fish before (r) Cro. J. 45; 1 Saund. 84; 11 East, 568. (s) 2 Bla. R. 1151. (t) 1 Inst. 8. (u) 6 East, 215; 7 East, 199; 11 East, 488; 2 Saund.175, n. 2; 2 B. & Ald. 667; 4 B. & Cres. 639; 7 D. & R. 49, S. C.; 2 & 3 W. 4, c. 71. (1) Com. Dig. Piscary; 2 Bla. C. 39, 40; Co. Lit. 127 & 122, in notes; see 2 Chit. Pl. 875, note (d); 4 T. R. 437; 2 Hen. B. 182; must have been by deed, 5 B. & Cres. 875; ante, 191, as to fisheries. (y) Id. ibid.; 5 Burr. 281; the owner of a several fishery in a river not navigable is prima facie owner of the soil, 2 Chit. R. 658; 5 B. & Cres. 875. (z) 1 T. R. 361; 2 Salk. 630; Co. Lit. 4; 1 Chit. R. 201; 1 M. & S 652, as to whether the grant of a fishery passes the soil; a right to sea fish does not entitle the party to shell fish, 2 M. & S. 568. (a) 5 B. & Cres. 875. (b) 1 Campb. 312. (c) Per Heath, J. in 1 Campb. 113. taken, but merely a right to take fish in the same water which others also have a right to fish in, and therefore, as the party has no exclusive right, he cannot support trespass against a stranger for fishing in the fishery any more than a party entitled to common of pasture could support trespass against a stranger for turning on cattle and diminishing his pasturage, and his proper remedy is an action on the case. (d) The right to fish in the sea or in an arm of the sea is of common right in all subjects, and therefore a plea claiming such a right of common of fishing by prescription would be bad, (e) and a right to fish in the sea or a navigable river is always subject to the right of navigation, and must be so conducted as not to impede it. (f) CHAP. IV. I. RIGHTS 11. 12. Corodies, and also annuities, are named as speci- 11. Corodies, & mens of incorporeal hereditaments, (g) but as neither of them 12. Annuities. issue out of nor are connected with land, (h) though the former were charges in the ecclesiastical person of the owner in respect of his inheritance, and the latter being purely personal and wholly unconnected with real property, though the regular payment may be secured by a charge thereon, they might more properly be classed amongst personalties. When the latter are wholly personal, and not charged upon real property at all, or stock, or not charged upon land of equal or greater annual value than the annuity, and whereof the grantor is seised in fee simple or fee tail in possession, or has power to charge at that time, then the same are regulated by the statute 53 Geo. 3, c. 141.(i) 13. Rents (redditus) is an annual render either in money, 13. Rents.(k) provisions or labour, in general, in retribution for land or other real property that has been conveyed or demised. (1) It must be reserved out of corporeal real property, and not in respect of incorporeal, (m) nor upon a letting merely of the use of personal chattels, as a flock of sheep, for if it be, it will have none of the incidents of rent, nor will be recoverable by distress, unless under an express power, but will, in legal contemplation, be a considered. (i) See decisions thereon, Chit. Col. (k) See in general, 2 Bla. C. 40 to 43; |