Front Page Titles (by Subject) CHAPTER III.: OF INCORPOREAL HEREDITAMENTS. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER III.: OF INCORPOREAL HEREDITAMENTS. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF INCORPOREAL HEREDITAMENTS.
An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within, the same.(a) It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament:1 for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the pro**21]duce of them, as the tenth sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they, being merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense: that casual share of the annual increase is not, till severed, capable of being shown to the eye, nor of being delivered into bodily possession.
Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.
I. Advowson is the right of presentation to a church, or ecclesiastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and therefore is synonymous with patronage, patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common, (from whence, as was formerly mentioned,(b) arose the division of parishes,) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron.(c)
This instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and its appendages; but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the sight, nor the touch; and yet it perpetually exists in the mind’s eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporeal possession be *[*22had of it. If the patron takes corporeal possession of the church, the churchyard, the glebe, or the like, he intrudes on another man’s property; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, by verbal grant,2 either oral or written, which is a kind of invisible mental transfer: and being so vested it lies dormant and unnoticed, till occasion calls it forth: when it produces a visible corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter, and receive bodily possession of the lands and tenements of the church.
Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only founders, and of course the only patrons, of churches,(d) the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant:(e) and it will pass, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words.(f) But where the property of the advowson has been once separated from the property of the manor by legal conveyance,3 it is called an advowson in gross, or at large, and never can be appendant any more; but it is for the future annexed to the person of its owner, and not to his manor or lands.(g)
Advowsons are also either presentative, collative, or donative:(h) an advowson presentative is where the patron hath a right of presentation to the bishop or ordinary, and moreover to demand of him to institute his clerk, if he finds him canonically qualified; and this is the most usual advowson.4 An advowson collative is where the bishop and patron are one and the same person; in which case the bishop cannot present to himself; but he does, by the one act of collation, or con**23]ferring the benefice, the whole that is done in common cases, by both presentation and institution. An advowson donative is when the king, or any subject by his license, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron’s deed of donation, without presentation, institution, or induction.(i) This is said to have been anciently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of archbishop Becket in the reign of Henry II.(k) And therefore though pope Alexander III.,(l) in a letter to Becket, severely inveighs against a prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shows what was then the common usage. Others contend that the claim of the bishops to institution is as old as the first planting of Christianity in this island; and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the Third, recorded by Matthew Paris,(m) which speaks of presentation to the bishop as a thing immemorial. The truth seems to be, that, where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him: but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feodal dominion over ecclesiastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally as a species of spiritual investiture.
However this may be, if, as the law now stands, the true patron once waives this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the ad*[*24vowson is now become forever presentative, and shall never be donative any more.(n) For these exceptions to general rules, and common right, are ever looked upon by the law in an unfavourable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up forever; and will therefore reduce it to the standard of other ecclesiastical livings.5
II. A second species of incorporeal hereditaments is that of tithes; which are defined to be the tenth part of the increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants:6 the first species being usually called predial, as of corn, grass, hops, and wood:(o) the second mixed, as of wool, milk, pigs, &c.,(p) consisting of natural products, but nurtured and preserved in part by the care of man; and of these the tenth must be paid in gross; the third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due.(q)7
It is not to be expected from the nature of these general commentaries, that I should particularly specify what things are tithable, and what not; the time when, or the manner and proportion in which, tithes are usually due. For this I must refer to such authors as have treated the matter in detail: and shall only observe, that, in general, tithes are to be paid for every thing that yields an annual increase, as corn, hay, fruit, cattle, poultry, and the like; but not for any thing that is of the substance of the earth, or is not of annual increase, as stone, lime, chalk, and the like; nor for creatures that are of a wild nature, or feræ naturæ, as deer, hawks, &c., whose increase, so as to profit the owner, is not annual, but casual.(r) It will rather be our business to consider, 1. The original of the right **25]of tithes. 2. In whom that right at present subsists. 3. Who may be discharged, either totally or in part, from paying them.
1. As to their original, I will not put the title of the clergy to tithes upon any divine right; though such a right certainly commenced, and I believe as certainly ceased, with the Jewish theocracy. Yet an honourable and competent maintenance for the ministers of the gospel is, undoubtedly, jure divino; whatever the particular mode of that maintenance may be. For, besides the positive precepts of the New Testament, natural reason will tell us, that an order of men, who are separated from the world, and excluded from other lucrative professions, for the sake of the rest of mankind, have a right to be furnished with the necessaries, conveniences, and moderate enjoyments of life, at their expense for whose benefit they forego the usual means of providing them. Accordingly all municipal laws have provided a liberal and decent maintenance for their national priests or clergy: ours in particular have established this of tithes, probably in imitation of the Jewish law: and perhaps, considering the degenerate state of the world in general, it may be more beneficial to the English clergy to found their title on the law of the land, than upon any divine right whatsoever, unacknowledged and unsupported by temporal sanctions.8
We cannot precisely ascertain the time when tithes were first introduced into this country. Possibly they were contemporary with the planting of Christianity among the Saxons, by Augustin the monk, about the end of the sixth century. But the first mention of them, which I have met with in any written English law, is in a constitutional decree, made in a synod held ad 786,(s) wherein the payment of tithes in general is strongly enjoined. This canon, or decree, which at first bound not the laity, was effectually confirmed by two kingdoms of the heptarchy, in their parliamentary conventions of estates, respectively consisting of the kings of Mercia **26]and Northumberland, the bishops, dukes, senators, and people; which was a very few years later than the time that Charlemagne established the payment of them in(t) France, and made that famous division of them into four parts; one to maintain the edifice of the church, the second to support the poor, the third the bishop, and the fourth the parochial clergy.(u)9
The next authentic mention of them is in the fœdus Edwardi et Guthruni; or the laws agreed upon between king Guthrun, the Dane, and Alfred and his son Edward the elder, successive kings of England, about the year 900. This was a kind of treaty between those monarchs, which may be found at large in the Anglo-Saxon laws:(w) wherein it was necessary, as Guthrun was a pagan, to provide for the subsistence of the Christian clergy under his dominion; and, accordingly, we find(x) the payment of tithes not only enjoined, but a penalty added upon non-observance: which law is seconded by the laws of Athelstan,(y) about the year 930. And this is as much as can certainly be traced out with regard to their legal original.
2. We are next to consider the persons to whom they are due.10 And upon their first introduction, (as hath formerly been observed,)(z) though every man was obliged to pay tithes in general, yet he might give them to what priests he pleased;(a) which were called arbitrary consecrations of tithes; or he might pay them into the hands of the bishop, who distributed among his diocesan clergy the revenues of the church, which were then in common.(b) But, when dioceses were divided into parishes, the tithes of each parish were allotted to its own particular minister; first, by common consent, or the appointment of lords of manors, and afterwards by the written law of the land.(c)
*[*27However, arbitrary consecrations of tithes took place again afterwards, and became in general use till the time of king John;(d) which was probably owing to the intrigues of the regular clergy, or monks of the Benedictine and other rules, under archbishop Dunstan and his successors, who endeavoured to wean the people from paying their dues to the secular or parochial clergy, (a much more valuable set of men than themselves,) and were then in hopes to have drawn, by sanctimonious pretences to extraordinary purity of life, all ecclesiastical profits to the coffers of their own societies. And this will naturally enough account for the number and riches of the monasteries and religious houses which were founded in those days, and which were frequently endowed with tithes. For a layman, who was obliged to pay his tithes somewhere, might think it good policy to erect an abbey, and there pay them to his own monks, or grant them to some abbey already erected: since, for this dotation, which really cost the patron little or nothing, he might, according to the superstition of the times, have masses forever sung for his soul. But, in process of years, the income of the poor laborious parish priests being scandalously reduced by these arbitrary consecrations of tithes, it was remedied by popo Innocent(e) the Third, about the year 1200, in a decretal epistle, sent to the archbishop of Canterbury, and dated from the palace of Lateran; which has occasioned Sir Henry Hobart and others to mistake it for a decree of the council of Lateran held ad 1179, which only prohibited what was called the infeodation of tithes, or their being granted to mere laymen;(f) whereas this letter of pope Innocent to the archbishop enjoined the payment of tithes to the parsons of the respective parishes where every man inhabited, agreeable to what was afterwards directed by the same pope in other countries.(g) This epistle, says Sir Edward Coke,(h) bound not the lay subjects of this realm: but, being reasonable and just, (and, he might have **28]added, being correspondent to the ancient law,) it was allowed of, and so became lex terræ. This put an effectual stop to all the arbitrary consecrations of tithes; except some footsteps which still continue in those portions of tithes which the parson of one parish hath, though rarely, a right to claim in another: for it is now universally held,(i) that tithes are due, of common right, to the parson of the parish, unless there be a special exemption. This parson of the parish, we have formerly seen,(k) may be either the actual incumbent, or else the appropriator of the benefice: appropriations being a method of endowing monasteries, which seems to have been devised by the regular clergy, by way of substitution to arbitrary consecrations of tithes.(l)
3. We observed that tithes are due to the parson of common right, unless by special exemption; let us therefore see, thirdly, who may be exempted from the payment of tithes, and how lands, and their occupiers, may be exempted or discharged from the payment of tithes, either in part or totally; first, by a real composition; or, secondly, by custom or prescription.
First, a real composition is11 when an agreement is made between the owner of the lands and the parson or vicar, with the consent of the ordinary and the patron, that such lands shall for the future be discharged from payment of tithes, by reason of some land or other real recompense given to the parson in lieu and satisfaction thereof.(m) This was permitted by law, because it was supposed that the clergy would be no losers by such composition; since the consent of the ordinary, whose duty it is to take care of the church in general, and of the patron, whose interest it is to protect that particular church, were both made necessary to render the composition effectual: and hence have arisen all such compositions as exist at this day by force of the common law. But experience showing that even this caution was ineffectual, and *[*29the possessions of the church being, by this and other means, every day diminished, the disabling statute, 13 Eliz. c. 10, was made; which prevents, among other spiritual persons, all parsons and vicars from making any conveyances of the estates of their churches, other than for three lives, or twenty-one years. So that now, by virtue of this statute, no real composition made since the 13 Eliz. is good for any longer term than three lives, or twenty-one years, though made by consent of the patron and ordinary: which has indeed effectually demolished this kind of traffic: such compositions being now rarely heard of, unless by authority of parliament.
Secondly, a discharge by custom or prescription, is where time out of mind such persons or such lands have been, either partially or totally, discharged from the payment of tithes. And this immemorial usage is binding upon all parties; as it is in its nature an evidence of universal consent and acquiescence, and with reason supposes a real composition to have been formerly made. This custom or prescription is either de modo decimandi, or de non decimando.
A modus decimandi, commonly called by the simple name of a modus only, is where there is by custom a particular manner of tithing allowed, different from the general law of taking tithes in kind, which are the actual tenth part of the annual increase. This is sometimes a pecuniary compensation, as two-pence an acre for the tithe of land: sometimes it is a compensation in work and labour, as that the parson shall have only the twelfth cock of hay, and not the tenth, in consideration of the owner’s making it for him: sometimes, in lieu of a large quantity of crude or imperfect tithe, the parson shall have a less quantity, when arrived to greater maturity, as a couple of fowls in lieu of tithe eggs, and the like. Any means, in short, whereby the general law of tithing is altered, and a new method of taking them is introduced, is called a modus decimandi, or special manner of tithing.
*[*30To make a good and sufficient modus, the following rules must be observed. 1. It must be certain and invariable,(n) for payment of different sums will prove it to be no modus, that is, no original real composition; because that must have been one and the same from its first original to the present time. 2. The thing given in lieu of tithes must be beneficial to the parson, and not for the emolument of third persons only;(o) thus a modus to repair the church in lieu of tithes is not good, because that is an advantage to the parish only; but to repair the chancel is a good modus, for that is an advantage to the parson. 3. It must be something different from the thing compounded for;(p) one load of hay, in lieu of all tithe hay, is no good modus; for no parson would bona fide make a composition to receive less than his due in the same species of tithe; and therefore the law will not suppose it possible for such composition to have existed. 4. One cannot be discharged from payment of one species of tithe by paying a modus for another.(q) Thus a modus of 1d. for every milch cow will discharge the tithe of milch kine, but not of barren cattle; for tithe is, of common right, due for both, and therefore a modus for one shall never be a discharge for the other. 5. The recompense must be in its nature as durable as the tithes discharged by it; that is, an inheritance certain:(r) and therefore a modus that every inhabitant of a house shall pay 4d. a year, in lieu of the owner’s tithes, is no good modus; for possibly the house may not be inhabited, and then the recompense will be lost. 6. The modus must not be too large, which is called a rank modus: as if the real value of the tithes be 60l. per annum, and a modus is suggested of 40l., this modus will not be established; though one of 40s. might have been valid.(s) Indeed, properly speaking, the doctrine of rankness in a modus is a mere rule of evidence, drawn from the improbability of the fact, and not a rule of law.(t) For, in these cases of prescriptive or customary moduses, it is supposed that an original real composition was anciently made; which being lost by length of time, the immemorial usage is admitted as evidence to show that it once did exist, and that from thence **31]such usage was derived. Now, time of memory hath been long ago ascertained by the law to commence from the beginning of the reign of Richard the First;(u)12 and any custom may be destroyed by evidence of non-existence in any part of the long period from that time to the present;13 wherefore, as this real composition is supposed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus set up is so rank and large, as that it beyond dispute exceeds the value of the tithes in the time of Richard the First, this modus is (in point of evidence) felo de se, and destroys itself. For, as it would be destroyed by any direct evidence to prove its non-existence at any time since that era, so also it is destroyed by carrying in itself this internal evidence of a much later original.14
A prescription de non decimando is a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them. Thus the king by his prerogative is discharged from all tithes.(v) So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for ecclesia decimas non solvit ecclesiæ.(w)15 But these per sonal privileges (not arising from or being annexed to the land) are personally confined to both the king and the clergy; for their tenant or lessee shall pay tithes, though in their own occupation their lands are not generally tithable.(x) And, generally speaking, it is an established rule, that, in lay hands, modus denon decimando non valet.(y)16 But spiritual persons or corporations, as monasteries, abbots, bishops, and the like, were always capable of having their lands totally discharged of tithes by various ways;(z) as, 1. By real composition: 2. By the pope’s bull of exemption: 3. By unity of possession; as when the rectory of a parish, and lands in the same parish, both belonged to a religious *[*32house, those lands were discharged of tithes by this unity of possession: 4. By prescription; having never been liable to tithes, by being always in spiritual hands: 5. By virtue of their order; as the knights-templars, cistercians, and others, whose lands were privileged by the pope with a discharge of tithes.(a) Though upon the dissolution of abbeys by Hen. VIII. most of those exemptions from tithes would have fallen with them, and the lands become tithable again, had they not been supported and upheld by the statute 31 Hen. VIII. c. 13, which enacts, that all persons who should come to the possession of the lands of any abbey then dissolved, should hold them free and discharged of tithes, in as large and ample a manner as the abbeys themselves formerly held them.17 And from this original have sprung all the lands, which, being in lay hands, do at present claim to be tithe-free: for, if a man can show his lands to have been such abbeylands, and also immemorially discharged of tithes by any of the means before mentioned, this is now a good prescription, de non decimando.18 But he must show both these requisites; for abbey-lands, without a special ground of discharge, are not discharged of course; neither will any prescription de non decimando avail in total discharge of tithes, unless it relates to such abbey-lands.19
III. Common, or right of common, appears from its very definition to be an incorporeal hereditament: being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like.(b) And hence common is chiefly of four sorts; common of pasture, of piscary, of turbary, and of estovers.20
1. Common of pasture is a right of feeding one’s beasts on another’s land: for in those waste grounds, which are usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the particular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in gross.(c)
**33]Common appendant is a right belonging to the owners or occupiers of arable land, to put commonable beasts upon the lord’s waste, and upon the lands of other persons within the same manor. Commonable beasts are either beasts of the plough, or such as manure the ground. This is a matter of most universal right; and it was originally permitted,(d) not only for the encouragement of agriculture, but for the necessity of the thing. For, when lords of manors granted out parcels of land to tenants, for services either done or to be done, these tenants could not plough or manure the land without beasts; these beasts could not be sustained without pasture: and pasture could not be had but in the lords’ wastes, and on the unenclosed fallow grounds of themselves and the other tenants. The law therefore annexed this right of common, as inseparably incident to the grant of the lands; and this was the original of common appendant: which obtains in Sweden, and the other northern kingdoms, much in the same manner as in England.(e) Common appurtenant ariseth from no connection of tenure, nor from any absolute necessity: but may be annexed to lands in other lordships,(f) or extend to other beasts, besides such as are generally commonable; as hogs, goats, or the like, which neither plough nor manure the ground. This, not arising from any natural propriety or necessity, like common appendant, is therefore not of general right; but can only be claimed by immemorial usage and prescription,(g) which the law esteems sufficient proof of a special grant or agreement for this purpose. Common because of vicinage, or neighbourhood, is where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one straying mutually into the other’s fields, without any molestation from either.21 This is indeed only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits: and therefore either township may enclose and bar out the other, though they have intercommoned time out of mind. Neither hath any person of one town a right to put his beasts originally *[*34into the other’s common: but if they escape, and stray thither of themselves, the law winks at the trespass.(h) Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man’s person; being granted to him and his heirs by deed; or it may be claimed by prescriptive right, as by a parson of a church, or the like corporation sole.22 This is a separate inheritance, entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor.23
All these species, of pasturable common, may be and usually are limited as to number and time; but there are also commons without stint, and which last all the year.24 By the statute of Merton, however, and other subsequent statutes,(i) the lord of the manor may enclose so much of the waste as he pleases for tillage or woodground, provided he leaves common sufficient for such as are entitled thereto. This enclosure, when justifiable, is called in law “approving,” an ancient expression signifying the same as “improving.”(j)25 The lord hath the sole interest in the soil; but the interest of the lord and commoner, in the common, are looked upon in law as mutual. They may both bring actions for damage done, either against strangers, or each other; the lord for the public injury, and each commoner for his private damage.(k)26
2, 3. Common of piscary is a liberty of fishing in another man’s water; as common of turbary is a liberty of digging turf upon another’s ground.(l)27 There is also a common of digging for coals, minerals, stones, and the like. All these bear a resemblance to common of pasture in many respects: though in one point they go much further; common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually; but common of turbary, and those aforementioned, are a right of carrying away the very soil itself.
**35]4. Common of estovers or estouviers,28 that is, necessaries, (from estoffer to furnish,) is a liberty of taking necessary wood, for the use or furniture of a house or farm, from off another’s estate. The Saxon word bote is used by us as synonymous to the French estovers: and therefore house-bote is a sufficient allowance of wood, to repair, or to burn in, the house: which latter is sometimes called fire-bote: plough-bote and cart-bote are wood to be employed in making and repairing all instruments of husbandry; and hay-bote, or hedge-bote, is wood for repairing of hay, hedges, or fences. These botes or estovers must be reasonable ones; and such any tenant or lessee may take off the land let or demised to him, without waiting for any leave, assignment, or appointment of the lessor, unless he be restrained by special covenant to the contrary.(m)29
These several species of commons do all originally result from the same necessity as common of pasture; viz. for the maintenance and carrying on of husbandry; common of piscary being given for the sustenance of the tenant’s family; common of turbary and fire-bote, for his fuel; and house-bote, plough-bote, cart-bote, and hedge-bote, for repairing his house, his instruments of tillage, and the necessary fences of his grounds.
IV. A fourth species of incorporeal hereditaments is that of ways; or the right of going over another man’s ground.30 I speak not here of the king’s highways, which lead from town to town; nor yet of common ways, leading from a village into the fields; but of private ways, in which a particular man may have an interest and a right, though another be owner of the soil. This may be granted on a special permission; as when the owner of the land grants to another the liberty of passing over his grounds, to go to church, to market, or the like: in which case the gift or grant is particular, and confined to the grantee alone: it dies with the person; and, if the grantee leaves the country, he cannot assign over his right to any other; nor can he justify taking another *[*36person in his company.(n)31 A way may be also by prescription; as if all the inhabitants of such a hamlet, or all the owners and occupiers of such a farm, have immemorially used to cross such a ground for such a particular purpose: for this immemorial usage supposes an original grant whereby a right of way thus appurtenant to land or houses may clearly be created.32 A right of way may also arise by act and operation of law: for, if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come to it; and I may cross his land for that purpose without trespass.(o) For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same.(p)33 By the law of the twelve tables at Rome, where a man had the right of way over another’s land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased: which was the established rule in public as well as private ways. And the law of England, in both cases, seems to correspond with the Roman.(q)34
V. Offices, which are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments; whether public, as those of magistrates; or private, as of bailiffs, receivers, and the like. For a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only: save only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice, for then they might perhaps vest in executors or administrators.(r) Neither can any judicial office be granted in reversion: because though the grantee may be able to perform it at the time of the grant, yet before the office falls he may become unable and insufficient: but ministerial offices may be so granted;(s) for those may be executed by deputy.35 Also by statute 5 & 6 Edw. VI. c. 16, no public office (a few only excepted) shall be sold, under pain of disability to dispose of or hold it. For the law presumes that *[*37he who buys an office will, by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public.36
VI. Dignities bear a near relation to offices. Of the nature of these we treated at large in the former book;(t) it will therefore be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate.37
VII. Franchises are a seventh species. Franchise and liberty are used as synonymous terms; and their definition is(u) a royal privilege, or branch of the king’s prerogative, subsisting in the hands of a subject. Being therefore derived from the crown, they must arise from the king’s grant; or in some cases may be held by prescription, which, as has been frequently said, presupposes a grant. The kinds of them are various, and almost infinite: I will here briefly touch upon some of the principal; premising only, that they may be vested in either natural persons or bodies politic; in one man or in many; but the same identical franchise that has before been granted to one, cannot be bestowed on another, for that would prejudice the former grant.(w)
To be a county palatine is a franchise, vested in a number of persons. It is likewise a franchise for a number of persons to be incorporated, and subsist as a body politic; with a power to maintain perpetual succession, and do other corporate acts: and each individual member of such corporation is also said to have a franchise or freedom. Other franchises are, to hold a court-leet: to have a manor or lordship; or, at least, to have a lordship paramount: to have waifs, wrecks, estrays, treasure-trove, royal fish, forfeitures, and deodands: to have a court of one’s own, or liberty of holding pleas and trying causes: to have the cognizance of pleas; which is a still greater liberty, being an exclusive right, so that no other court shall try causes arising within that jurisdiction: to have a bailiwick, or liberty exempt from the sheriff of the county; **38]wherein the grantee only, and his officers, are to execuse 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;(b) which being feræ naturæ, every one had a right to kill as he could; but upon **39]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)38 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(g) and third(h) charters of Henry III. to 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,(i) 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*[*40sive right, the common of piscary is not so: and therefore, in a free fishery, a man has a property in the fish before 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.(l) 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 acknowledged, 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.39
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.(o) 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,
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 20l. per annum, 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;(q) and yet a man may have a real estate in it, though his security is merely personal.40
*[*41X. Rents are the last species of incorporeal hereditaments. The word rent or render, reditus, signifies a compensation or return, it being in the 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.(s) 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 every successive year; but it may be reserved every second, third, or fourth year;(t) yet, as it is to be produced 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.41
There are at common law(y) three manner of rents, rent-service, rent-charge, and rent-seck. Rent-service is so called *[*42because it hath some corporeal service incident to it, as at the least fealty or the feodal oath of fidelity.(z) 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. And 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 reversion 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.(b)42Rent-seck, reditus siccus, or barren-rent, is, in effect, nothing more than a rent reserved by deed, but without any clause of distress.43
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, blanch-farms, reditus albi,(d) in contradistinction to rents reserved in work, grain, or baser money, which were called **43]reditus nigri, or black-mail.(e)Rack-rent 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.44
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)45
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.(l)46
With regard to the original of rents, something with be said in the next chapter; and, as to distresses and other remedies for their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part of our commentaries, which will treat of civil injuries, and the means whereby they are redressed.
[(a) ] Ibid. 19, 20.
[1 ] Of course, our author meant to speak of an annuity granted to a man and his heirs, not of an annuity for life, which in no sense of the word can be called an hereditament. The word is no doubt often inserted in grants for life or years; but then it is only with reference to some subject which is matter of inheritance. Smith vs. Tindal, 11 Mod. 90.—Chitty.
[(b) ] Book i. page 112.
[(c) ] This original of the jus patronatus, by building and endowing the church, appears also to have been allowed in the Roman empire. Nov. 26, t. 12, c. 2. Nov. 118, c. 23.
[2 ] The late learned Vinerian professor, Mr. Wooddeson, has taken notice of this inaccuracy, and has observed that “advowsons, merely as such, [i.e. in gross,] could never, in any age of the English law, pass by oral grant without deed.” 2 Woodd. 64. Lord Coke says expressly that “grant is properly of things incorporeal, which cannot pass without deed.” 1 Inst. 9. But before the statute of Frauds, 29 Car. II. c. 3, any freehold interest in corporeal hereditaments might have passed by a verbal feoffment, accompanied with livery of seisin. Litt. 59. And by such a verbal grant of a manor, Mr. Wooddeson justly observes, before the statute, an advowson appendant to it might have been conveyed. But he who has an advowson or a right of patronage in fee may by deed transfer every species of interest out of it,—viz., in fee, in tail, for life, for years,—or may grant one or more presentations.—Christian.
[(d) ] Co. Litt. 199.
[(e) ] Ibid. 121.
[(f) ] Ibid. 307.
[3 ] For instance, if the manor to which an advowson is appendant be conveyed away in fee simple, excepting the advowson, or, vice versâ, if the advowson be conveyed away without the manor to which it was appendant, the advowson becomes in gross. Fulmerston vs. Stuard, Dyer, 103, b. If, upon partition between two coparceners, a manor be allotted to one, and an advowson appendant thereto to another, the advowson becomes, for a time at least, severed from the manor; but if, by the death of one coparcener without issue, the two estates become reunited by law, the advowson which was once severed is now appendant again. Sir Moyle Finch’s case, 6 Rep. 64, b. Hartop vs. Dalby, Hetley, 14. The dictum in the text, therefore, which intimates that an advowson which once becomes in gross can never again be appendant, must be qualified. See Gibson’s Codex, 757. And our author could not mean that a temporary severance, by a lease for life or years of a manor, with the exception of an appendant advowson, will have the effect of totally destroying its appendant qualities: the contrary doctrine has been established. Hartox vs. Cock, Hutt. 89, Jenk. Cent. 310, pl. 91. And where several parties have a right to nominate and present to a church in turns, the advowson may be appendant for one turn, and in gross for another. Illisfield case, Dyer, 259, a. pl. 19.—Chitty.
[(g) ] Ibid. 120.
[(h) ] Ibid.
[4 ] The right of presentation is the right to offer a clerk to the bishop, to be instituted to a church. Co. Litt. 120, a. 3 Cruise, 3. All persons seised in fee, in tail, or for life, or possessed for a term of years of a manor to which an advowson is appendant, or of an advowson in gross, may present to a church when vacant. Although this is a right considered of great value, as a provision for relations, a pledge of friendship, or, what is its true use and object, the reward of learning and virtue, yet the possession of it never can yield any lucrative benefit to the owner, as the law has provided that the exercise of this right must be perfectly gratuitous. The advowson itself is valuable and salable, out not the presentation when the living is void. 1 Leon. 205. Therefore, the mortgagor shall present when the church is vacant, though the advowson alone is mortgaged in fee, for the mortgagee could derive no advantage from the presentation in reduction of his debt. 3 Atk. 599. Mirehouse, Adv. 150, 151. So, though the assignees of a bankrupt may sell the advowson, yet, if the church be void at the time of the sale, the bankrupt himself must present the clerk, (Mirehouse, 156;) and if an advowson is sold when the church is void, the grantee cannot have the benefit of the next presentation; and it has been doubted whether the whole grant is not void, (Cro. Eliz. 811, 3 Burr. 1510. Bla. Rep. 492, 1054. Amb. 268;) though probably there would be no objection to the grant of an advowson, though the church is vacant if the next presentation be expressly reserved by the grantor, especially as it has been decided that a conveyance of an advowson, though it may be void for the next presentation, yet may be good for the remaining interest, when it can be fairly separated from the objectionable part. 5 Taunt. 727. 1 Marsh. 292. An advowson in fee in gross is assets in the hands of the heir, (3 Bro. P. C. 556;) but it is not extendible under an elegit, because a moiety cannot be set out, nor can it be valued at any certain rent towards payment of the debt. Gilb. Exec. 39. 2 Saund. 63, f.
He who has an advowson or right of patronage in fee may, by deed, transfer every species of interest out of it, viz., in fee, in tail, for life, for years, or may grant one or more presentations. The right of presentation descends by course of inheritance from heir to heir, as lands and tenements, unless the church become vacant in the lifetime of the person seised of the advowson in fee, when the void turn, being then a chattel, goes to the executor, unless it be a donative benefice, and in that case the right of donation descends to the heir. 2 Wils. 150. If, however, the patron presents and dies before his clerk is admitted, and his executor presents another, both these presentments are good, and the bishop may receive which of the clerks he pleases. Co. Litt. 388, a. Burn, E. L. tit. Advowson. Mirehouse on Advowsons, 139, where see in general the right of presentation. See further as to presentation by joint-tenants and tenants in common, 2 Saund. 116, b. Where the same person is patron and incumbent, and dies, his heir is to present, (3 Lev. 47. 3 Buls. 47;) but such patron and incumbent may devise the presentation. 1 Lev. 205. 2 Roll. Rep. 214. 6 Cruise, Dig. 21. Mirehouse, 70. But, as we have seen, an advowson in gross will not pass by the word “lands” in a will, though it will be comprehended under the terms “tenements” and “hereditaments.” Ante, 16, n. 2.
The remedy for the infraction of the right of presentation is an action of quare impedit, in which, although we have seen that no profit can be taken for presenting the clerk, yet the patron, whose right of patronage is injuriously disturbed, recovers two years’ value of the church if the turn of presentation is lost. 3 Cruise, 17, 18. The particulars of the action of quare impedit will be considered, post, 3 book, 242 to 253. When the bishop refuses without good cause, or unduly delays, to admit and institute a clerk, he may have his remedy against the bishop in the ecclesiastical court. 3 Cruise, 17. As to any remedy for the clerk at law, see 13 East, 419. 15 East, 117.—Chitty.
[(i) ] Co. Litt. 344.
[(k) ] Seld. Tith. c. 12, 2.
[(l) ]Decretal, l. 3, t. 7, c. 3.
[(m) ]ad 1239.
[(n) ] Co. Litt. 344. Cro. Jac. 63.
[5 ] The contrary is held by a later authority than the authorities referred to by the learned judge; in which it was declared that, although a presentation may destroy an impropriation, yet it cannot destroy a donative, because the creation thereof is by letters-patent. 2 Salk. 541.—Christian. 3 Salk. 140. Mirehouse, 26. It may here be observed, that when an incumbent is made a bishop, the right of presentation in that case is in the king, and is called a prerogative presentation; the law concerning which was doubted in Car. II.’s time, but in the time of king William it was finally determined in favour of the crown. 2 Bla. R. 770.—Chitty.
[6 ] The definition proposed in the text is not strictly accurate. The faulty part of the definition seems to be the supposition that tithe consists, in all cases, of the tenth part of the increase yearly arising and renewing. This is not correct, even as to predial tithes, universally; and to mixed and personal tithes it does not at all apply. See the 4th ch. of Toller on Tithes.
Wood is one of the instances to show that predial tithe may be payable in respect of an article of which the renewal is not annual. Silva cædua is tithable when it is felled; and between the falls several years commonly (and a great many years not unfrequently) intervene. Page vs. Wilson, 2 Jac. & Walk. 523. Walton vs. Tryon, 1 Dick. 245. Chichester vs. Sheldon, Turn. & Russ. 249.—Chitty.
[(o) ] 1 Roll. Abr. 635. 2 Inst. 649.
[(p) ] Ibid.
[(q) ] 1 Roll. Abr. 656.
[7 ] The distinction between predial and mixed tithe is that predial tithes (so called from prædium, a farm) are those which arise immediately from the soil, either with or without the intervention of human industry. Those are mixed which arise immediately through the increase or other produce of animals, which receive their nutriment from the earth and its fruits. Therefore agistment is a predial tithe, though, as it is incapable of being set out in kind, it is not within the statute, 2 and 3 Ed. VI. c. 23, per Macdonald, Ch. B. 3 Anstr. 763. Personal tithes are so termed because they arise entirely from the personal industry of man. Mirehouse, 1 and 2. These personal tithes are not at present paid anywhere, except for fish caught in the sea, (Bunb. Rep. 256. 3 T. R. 385,) and for corn-mills. Mirehouse, 93 to 101. Tithe is not payable of common right of things feræ naturæ, as of deer in a park, or rabbits in a warren, or a decoy in lands of owner, but by special custom may be due. Com. Dig. Dismes, H. 4, 16. Owen. 34. Gwm. 275. Cro. Car. 339. 8 Price, 39.
In addition to this triple distinction, all tithes have been otherwise divided into two classes, great or small; the former, in general, comprehending the tithes of corn, peas and beans, hay, and wood; the latter, all other predial, together with all personal and mixed, tithes. Tithes are great or small, according to the nature of the things which yield the tithe, without reference to the quantity.—Chitty.
[(r) ] 2 Inst. 651.
[8 ] The argument that tithes may be taken to be part of the rent which the farmer pays for his land is more plausible than sound; for the sum which he pays to his landlord under that name is certain, while the amount which he pays to the clergyman increases with the increase of his harvests, though that has been effected by an increased expenditure both of money and labour. It seems hard, therefore, that he should be stripped of one-tenth of the results of his superior husbandry in addition to the tenth of the produce of his farm by the ordinary course of cultivation. In the case of personal tithes, only a tenth of the clear profit is payable after deducting all expenses. 3 Anstr. 915. Mirehouse, 108. Why, therefore, should the tenth of the produce of lands be allowed without any deduction for expenses? The policy of a system which gives rise to jealousies, distrusts, and quarrels between the people and their spiritual guides is at best questionable; and the true friends of the church must be anxious for those changes becoming general which have prevented the recurrence of those evils wherever they have been introduced. Accordingly, the courts and juries look with favour upon, and endeavour to support, compositions, ancient payments, and moduses.—Chitty.
[(s) ] Seld. c. 8, 2.
[(t) ]ad 778.
[(u) ] Book i. ch. 11. Seld. c. 6, 7. Sp. of Laws, b. 31, c. 12.
[9 ] With respect to the quadripartite division of tithes mentioned in the text, Toller (p. 6) thinks it was not only more ancient than the law of Charlemagne upon the subject, but also conformable to some very old canon or usage. He draws this inference, reasonably enough, from the answer returned to Augustin, who, when he inquired of the pope as to the bishop’s portion of the oblations of the faithful, was told that the custom was generally to make such a division as that alluded to,—a division which has very long been disregarded. With the exception of the chancel, which the rector is still boand to repair, no part of the tithes is at the present day applicable to the maintenance of the church. The quantum devoted to the poor depends entirely upon the voluntary charity of the incumbent; and the bishop no longer looks for the due support of his rank to a participation in the tithes paid to the parochial clergy.—Chitty.
[(w) ] Wilkins, page 51.
[(x) ] Cap. 6.
[(y) ] Cap. 1.
[10 ] The rector is prima facie entitled to all the tithes of the parish, small as well as great; and the vicar, in order to take any part of them from him, must either produce an endowment or give such evidence of usage as presupposes an endowment, since courts will not presume any thing in favour of the vicar against the rector. 2 Buls. 27. 2 Ves. Sen. 511. Yelverton, 86. 3 Atk. 497. Mirehouse on Tithes, 11. Where an endowment does not extend to the tithe in question, a subsequent more extensive endowment may be presumed from usage, (Hardr. 328. 2 Buls. 27. 1 Price, 13. 2 Price, 250, 284, 329. 9 Price. 231;) and forty years’ usage is sufficient to afford presumption of a subsequent endowment, (4 Price, 198. 2 Price, 450;) and perhaps thirty or twenty years would suffice. Gwil. 648. Bunb. 144. 9 Price, 231. 2 Bar. & C. 54. Mirehouse on T. 15, 17. In general, a curate has no claim to the tithes of a parish. Mirehouse on T. 20.
Portions of tithes may be vested in a person who is neither rector nor vicar, by grant before the restraining statutes, and which may be evidenced by long possession. Deggs, c. ii. 226. 1 Anst. 311. Gwil. 1513.—Chitty.
[(z) ] Book i. Introd. 4.
[(a) ] Inst. 646. Hob. 296.
[(b) ] Seld. c. 9, 4.
[(c) ]LL. Edgar. c. 1 and 2. Canut. c. 11.
[(d) ] Seld. c. 11.
[(e) ]Opera Innocent. III. tom. 2 page 452.
[(f) ]Decretal, l. 3, t. 30, c. 19.
[(g) ] Ibid. c. 2, 6.
[(h) ] 2 Inst. 641.
[(i) ] Regist. 46. Hob. 296.
[(k) ] Book i. p. 385.
[(l) ] In extraparochial places the king, by his royal prerogative, has a right to all the tithes. See book i. pp. 113, 284.
[11 ] As to real compositions in general, see Mirehouse, 157. In order to establish it in evidence, the deed itself, executed between the commencement of the reign of Richard the First and the 13 Eliz., must be produced, or such evidence from whence, independent of mere usage, it may be inferred that the deed once existed; for otherwise every bad modus might be turned into a good composition. 3 Bro. Rep. 217. 2 Anst. 372. Wightw. 324. 1 Daniel’s Rep. 10. 1 Price, 253. Gwil. 587. Without such evidence of a deed, a composition real cannot be proved by reputation, though corroboratory evidence of non-payment of tithes and a deed creating a composition real will not be presumed from payment for two hundred years of a sum of 20l. in lieu of tithes. 4 Mad. 140. 2 Bos. & P. 206. Mirehouse, 166, 7, 159; but see 5 Ves. Jr. 187.
With respect to compositions entered into between the tithe-owner and any parishioner for the latter to retain the tithes of his own estate, they are clearly legal and binding on the parties; and it has been decided that they are analogous to tenancies from year to year between landlord and tenant; and if they are paid without or beyond an agree ment for a specific time, they cannot be put an end to without half a year’s notice, expiring at the time of the year from which the composition commenced; and the parishioner may avail himself of the defect of notice at the same time that he controverts the right of the incumbent to receive tithes in kind,—an objection not permitted to a tenant who denies the right of the landlord. 2 Rayner on T. 992. 2 Bro. 161. 1 Bos. & Pul. 458. And this doctrine was confirmed in 12 East, 83, where it was also decided that the notice must be unequivocal. A parishioner who has compounded with the parson one year for his tithes, and has not determined the composition, cannot set up as a defence to an action for the next year’s composition-money that the plaintiff is simoniacus. 6 Taunt. 333. 2 Marsh, 38. If the occupier disclaim any liability to pay tithes at all, and deny the parson’s title, this dispenses with the necessity for a notice to determine the composition. 1 Brod. & B. 4. 3 B. Moore, 216, S. C. See the form of notice, Tidd’s Forms, ch. xlvi. 5; and, if the time be uncertain, see id. s. 3. In case of death of the incumbent who has agreed to the composition, the successor is entitled to tithe in kind; and there is no apportionment of the composition-money under the 11 Geo. II. c. 19; but if the successor continue to receive the same payment thereon, he will be entitled to an apportionment. 10 East, 269. 8 Ves. 308. 2 Ves. & B. 334. Bunb. 294. Price vs. Lytton, per Plumner, m. of rolls, H. T. 1818. By agreeing to a composition, a rector loses his remedy on the land and on the statute Edward VI., and has only a personal action for the arrears of his composition. 4 Mad. 177. These compositions are purely personal; and, in case of a change in the occupation of the land the fresh occupier will be liable to set out tithe in kind. 2 Chitty’s Rep. 405.—Chitty.
[(m) ] 2 Inst. 490. Regist. 38. 13 Rep. 40.
[(n) ] 1 Keb. 602.
[(o) ] 1 Roll Abr. 649.
[(p) ] 1 Lev. 179.
[(q) ] Cro. Eliz. 486. Salk. [Editor: Illegible character]
[(r) ] 2 P Wms. 462.
[(s) ] 11 Mod. 60.
[(t) ] Pyke vs. Dowling, Hil. 19 Geo. III. C. B.
[(u) ] 2 Inst. 238, 239. This rule was adopted when by the statute of Westm. I. (3 Edw. I. c. 39) the reign of Richard I. was made the time of limitation in a writ of right. But, since by the statute 32 Hen. VIII. c. 2 this period (in a writ of right) hath been very rationally reduced to sixty years, it seems unaccountable that the date of legal prescription or memory should still continue to be reckoned from an era so very antiquated. See Litt. 170. 34 Hen. VI. 37. 2 Roll Abr. 269, pl. 16.
[12 ] The modern statutes relating to prescription have now, in almost all cases, obviated the necessity of carrying back proof to this remote date.—Kerr.
[13 ] But though it is essential to the validity of a prescription or custom that it should have existed before the commencement of the reign of Richard I., ad 1189, yet proof of a regular usage for twenty years, not explained or contradicted, is that upon which many private and public rights are held, and sufficient for a jury in finding the existence of an immemorial custom or prescription. 2 Bar. & Cres. 54. 2 Saund. 175, ad Peake’s Evidence, 336. 4 Price R. 198. 2 Price R. 450.—Chitty.
[14 ] To constitute a good modus, it should be such as would have been a certain, fair, and reasonable equivalent or composition for the tithes in kind before the year 1189, the commencement of the reign of Richard I.; and therefore no modus for hops, turkeys, or other things eo nomine, introduced into England since that time, can be good. Bunb. 307.
The question of rankness, or rather modus or no modus, is a question of fact, which courts of equity will send to a jury, unless the grossness of the modus is so obvious as to preclude the necessity of it. 2 Bro. 163. 1 Bl. R. 420. 2 Bl. R. 1257.—Christian.
Bedford vs. Sambell, M. 16 Geo. III. Scacc. 3 Gwm. 1058. Twells vs. Welby, H. 20 Geo. III. Scacc. 3 Gwm. 1192. Mirehouse, 180 to 186.—Chitty.
[(v) ] Cro. Eliz. 511.
[(w) ] Cro. Eliz. 479, 511. Sav. 3. Moor, 910.
[15 ] This maxim, it was said by Richards, C. B., merely applies to the case of a rector and vicar of the same church and parish, where the ecclesia would be paying tithes to itself. In no other case, it was added, can an ecclesiastical person rest his exemption upon this maxim, but must prescribe de non decimando. Warden and Minor Canons of St. Paul’s vs. The Dean, 4 Pr. 77, 78.—Chitty.
[(x) ] Cro. Eliz. 479.
[(y) ] Ibid. 511.
[16 ] It is not very accurate to speak of a modus de non decimando: a modus, as our author has taught us, is a particular manner of tithing. Where the privilege asserted is that of not paying tithes at all, præscriptio is the more proper word, as the commencement of the paragraph shows Blackstone to have been well aware. It would be idle to notice so trivial an oversight, if some of the books of practice had not copied it, by which a non-professional reader might be misled into supposing that modus and prescription are, in all cases, convertible terms.—Chitty.
[(z) ] Hob. 309. Cro. Jac. 308.
[(a) ] 2 Rep. 44. Seld. Tith. c. 13, 2.
[17 ] This provision is peculiar to that statute, and therefore all the lands belonging to the lesser monasteries (i.e. such as had not lands of the clear yearly value of 200l.) dissolved by the 27 Hen. VIII. c. 28, are now liable to pay tithes. Com. Dig. Dism. E. 7.—Christian.
[18 ] Mere non-payment of a particular species of tithe, or proof that no tithes in kind have ever been rendered within living memory, does not afford sufficient evidence of the exemption from tithe, (Gwil. 757. 1 Mad. R. 242. 4 Price, 16;) but the party insisting on the exemption must show the ground of discharge by deducing title from some ecclesiastical person and thus showing the origin of the exemption. 2 Co. 44. Peake on Evid. 470, 471. 4 ed. Bunb. 325, 345. 3 Anst. 762, 945. Mirehouse, 152, 156, 157. And the same rule applies when the claim of exemption is against a lay impropriator, as against an ecclesiastical rector, and against the former no presumption of a grant or conveyance of the tithes, so as to discharge the land, is to be entertained. 3 Anstr. 705; but see Rose vs. Calland, 5 Ves. Jr. 186, contra see Mirehouse, 159.—Chitty.
[19 ] Tithes have already to a considerable extent, and will soon have entirely, become mere matter of history, through the operation of the tithe commutation acts. The first general statute of this class (for private acts for the same purpose had in particular cases been obtained) was the statute 6 & 7 Wm. IV. c. 71, which has been amended by several subsequent statutes. The same principle of legislation has also been extended to Ireland by 1 & 2 Vict. c. 109. The chief object of these statutes is to substitute the payment of an annual rent of defined amount for the render of a tenth of the tithable produce of the land or the payment of an arbitrary composition. To effect this, the gross amount of the annual sums to be payable by way of rent-charge in substitution for the tithes is first ascertained. One-third of the amount, when ascertained and settled, is to be represented by such a quantity of wheat, another third by such a quantity of barley, and the remaining third by such a quantity of oats, as the rent-charge, if invested in the purchase of these three species of grain, would have purchased at their average prices per bushel during seven years ending Christmas, 1835. The tithe rent-charge is therefore in the nature of a corn-rent, but the payment is made in money, and varies annually, according to the average septennial value of the above three species of grain, on the Thursday preceding Christmas-day in every year, as the same is published in the “London Gazette” in the month of January.—Kerr.
[(b) ] Finch, Law, 157.
[20 ] As to rights of common in general, see Com. Dig. tit. Common; Bac. Abr. tit. Common; 3 Com. Dig. 92 to 118; Selw. N. P. tit. Common; Saunder’s Rep. by Patterson, index, tit. Com. and Commoners. The better cultivation, improvement, and regulation of the common fields, wastes, and commons of pasture is effected by 29 Geo. II. c. 36. s. 1. 31 Geo. II. c. 41. 13 Geo. III. c. 81; and the 38 Geo. III. c. 65 contains regulations for preventing the depasturing of forests, commons, and open fields, with sheep or lambs infected with the scab or mange. The very general enclosure of commons has rendered litigation respecting them less frequent than formerly. Such enclosure is usually effected by a separate private act. But to prevent the repetition of clauses usually applicable to all local acts, the general enclosure act, 41 Geo. III. c. 109 (amended by 1 & 2 Geo. IV. c. 23) was passed, which, however, is not to operate against the express provisions of any local act. See sect. 44. 1 Bar. & A. 630.—Chitty.
[(c) ] Co. Litt. 122.
[(d) ] 2 Inst. 86.
[(e) ] Stiernh. de jure Sueonum, l. 2, c. 6.
[(f) ] Cro. Car. 482. 1 Jon. 397.
[(g) ] Co. Litt. 121, 122.
[21 ] In 2 Wooddes. 78, this description as a definition of the right of common par cause de vicinage is objected to as being a descriptive example or illustration rather than a definition. The lords of the contiguous manors may enclose the adjacent waste. 4 Co. 38, C. Co. Litt. 122, a. 2 Mod. 105. But if an open passage be left between the two commons sufficient for a highway, then, as the separation was not complete so as to prevent the cattle from straying from one to the other by means of the highway, the common by vicinage still continues. 13 East, 348. In case of open field lands, the owner of any particular spot may, by custom, exclude the other from right of pasture there by enclosing his own land. 2 Wils. 269.—Chitty.
[(h) ] Ibid. 122.
[22 ] Levancy and couchancy is not essential. 5 Taunt. 244. A right of common in gross, “as the going of two head of cattle on a common,” is a tenement within the statute 13 & 14 Car. II., and a precipe will lie for it; and therefore a person renting such a right of the annual value of 10l. thereby gains a settlement. 7 T. R. 671. 2 Nol. Pl. ch. 23, s. 2. As to cattle-gates, (which are common in the north,) they are not like common of pasture, for they are conveyed by lease and release, and must be devised according to the statute of frauds. The owners of them have a joint possession and a several inheritance. They have an interest in the soil itself, and a cattle-gate is a tenement within the 13 & 14 Car. II. c. 12, for the purpose of gaining a settlement. 1 T. R. 137. An ejectment will lie for a beast-gate in Suffolk, (signifying land and common for one beast,) (2 Stra. 1804,) and so for a cattle-gate. 2 T. R. 452. 2 Stra. 1804. Rep. T. Hardw. 167. Sel. N. P. Ejectment, 3, note 8.
If A., and all those whose estate he has in the manor of D., have had from time immemorial a fold-course, that is, common of pasture for any number of sheep not exceeding three hundred, in a certain field as appurtenant to the manor, he may grant over to another this fold-course, and so make it in gross, because the common is for a certain number, and by the prescription the sheep are to be levant and couchant on the manor. 1 Roll. Abr. 402, pl. 3. Cro. Car. 432. Sir W. Jones, 375.—Chitty.
[23 ] Common appendant and appurtenant are limited as to the number of cattle either to an express number, or by levancy and couchancy, sometimes termed common without number. Willes, 232. By common without number is not meant common for any number of beasts which the commoner shall think fit to put into the common, but it is limited to his own commonable cattle levant and couchant upon his land, (by which is to be understood as many cattle as the produce of the land of the commoner in the summer and autumn can keep and maintain in the winter.) And, as it is uncertain how many in number these may be, there being in some years more than in others, it is therefore called common without number, as contradistinguished from common limited to a certain number; but still it is a common certain in its nature. 2 Brownl. 101. 1 Vent. 54. 5 T. R. 48. 1 Bar. & Ald. 706. Rogers vs. Benstead, Selw. Ni. Pri. tit. Common. There fore a plea, prescribing for common appurtenant to land for commonable cattle, without saying levant and couchant, is bad, (1 Saund. 28, b.; id. 343;) for it shall be intended common without number, according to the strict import of the words, without any limitation whatsoever; for there is nothing to limit it when it is not said for cattle levant and couchant. 1 Roll. Abr. 398, pl. 3. Hard. 117, 118. 2 Saund. 346, note 1. 8 Term Rep. 396. From hence it follows that where the common is limited to a certain number it is not necessary to aver that they were levant and couchant, (1 Roll. Abr, 401, pl. 3. Cro. Jac. 27. 2 Mod. 185. 1 Lord Raym. 726;) because it is no prejudice to the owner of the soil, as the number is ascertained.—Chitty.
[24 ] The notion of this species of common is exploded. A right of common without stint cannot exist in law. Bennet vs. Reeve, Willes, 232. 8 T. R. 396.—Chitty.
[(i) ] 20 Hen. III. c. 4. 29 Geo. II. c. 36, and 31 Geo. II. c. 41.
[(j) ] 2 Inst. 474.
[25 ] Any person who is seised in fee of part of a waste may approve, besides the lord of the manor, provided he leaves a sufficiency of common for the tenants of the manor, but not otherwise, without consent of homage. 1 Stark. 102. 3 T. R. 445.
It seemed to have been generally understood that the lord could not approve, where the commoners had a right of turbary, piscary, of digging sand, or of taking any species of estovers upon the common. 2 T. R. 391. But it is now decided, agreeably to the general principles of the subject, that where the tenants have such rights they will not hinder the lord from enclosing against the common of pasture, if sufficient be left, for this is a right quite distinct from the others; but if by such enclosure the tenants are interrupted in the enjoyment of their rights of turbary, piscary, &c., then the lord cannot justify the approvement in prejudice of these rights. 6 T. R. 741. Willes, 57. The right of the commoners to the pasturage may be subservient to the right of the lord; for if the lord has immemorially built houses or dug clay-pits upon the common without any regard to the extent of the herbage, the immemorial exercise of such act is evidence that the lord reserved that right to himself when he granted the right of pasturage to the commoners. 5 T. R. 411. If a lord of a manor plant trees upon a common, a commoner has no right to cut them down. His remedy is only by an action. 6 T. R. 483.—Christian.
[(k) ] 9 Rep. 113.
[26 ] Common appurtenant or appendant can be apportioned. But the land which gives a right of common to the owner shall not be so alienated as to increase the charge or burden on the land out of which common is to be taken. Therefore if the owner of the land entitled to common purchase a part of the land subject to common, the common shall be extinct; and vice versa. Where the right is extinguished or gone as to a portion of the land entitled to common, it is extinct as to the whole; for in such case common appurtenant cannot be extinct in part, and be in esse for part, by the act of the parties. Livingston vs. Ten Broeck, 16 Johns. 14.—Sharswood.
[(l) ] Co. Litt. 122.
[27 ] Common of turbary can only be appendant or appurtenant to a house, not to lands, (Tyringham’s case, 4 Rep. 37;) and the turf cut for fuel must be burned in the commoner’s house, (Dean and Chapter of Ely vs. Warren, 3 Atk. 189,) not sold. Valentine vs. Penny, Noy, 145. So, it seems, an alleged custom for the tenants of the manor to be entitled to cut and carry away from the wastes therein an indefinite quantity of turf, covered with grass, fit for the pasturage of cattle, for the purpose of making and repairing grass-plots in their gardens, or other improvements and repairs of their customary tenements, cannot be supported. Wilson vs. Willes, 7 East, 127.—Chitty.
[28 ] The liberty which every tenant for life or years has, of common right, to take necessary estovers in the lands which he holds for such estate, seems to be confounded, in most of the text-books, with right of common of estovers. Yet they appear to be essentially different. The privilege of the tenant for life or years is an exclusive privilege, not a commonable right. Right of common of estovers seems properly to mean a right appendant or appurtenant to a messuage or tenement, to be exercised in lands not occupied by the holder of the tenement. Such a right may either be prescriptive, or it may arise from modern grant. Countess of Arundel vs. Steere, Cro. Jac. 25. And though the grant be made to an individual for the repairs of his house, the right is not a personal one, but appurtenant to the house. Dean and Chapter of Windsor’s case, 5 Rep. 25. Sir Henry Nevill’s case, Plowd. 381. Such a grant is not destroyed by any alteration of the house to which the estovers are appurtenant, but it may be restricted within the limits originally intended, if the altered state of the premises would create a consumption of estovers greater than that contemplated when the grant was made. Luttrel’s case, 4 Rep. 87.
If a right of common of estovers of wood be granted, to be taken in a certain wood, the owner of which cuts down some of the wood, the grantee cannot take the wood so cut: even if the whole be cut down, he has no remedy but an action of covenant or on the case. Basset vs. Maynard, Cro. Eliz. 820. Pomfret vs. Ricroft, 1 Saund. 322. Douglass vs. Kendal, Cro. Jac. 256; S. C. Yelv. 187; which last case illustrates the distinction between the exclusive right to the wood growing on certain land, and a right of common of estovers only. It is true that a single copyholder, or other tenant, and that one only, may be entitled to right of common of pasture, or estovers, or other profit in the land of the lord of the manor; but then the lord at least must participate in the right: if the tenant enjoyed the right solely, severally, and exclusively, it would be difficult, without a violent strain of language, to discover in such a right any commonable qualities. Foiston & Cracherode’s case, 4 Rep. 32. North vs. Coe, Vaugh. 256.—Chitty.
[(m) ] Co. Litt. 41.
[29 ] Common of estovers cannot be apportioned; and, where a farm entitled to estovers is divided by the act of the parties among several tenants, neither of them can take estovers: the right to them is extinguished. But where common of estovers devolves upon several, by operation of law, though they cannot enjoy the right in severalty, yet they may, by uniting in a conveyance, vest the right in an individual. Van Rensellaer vs. Radcliffe, 10 Wend. 639. Livingston vs. Ketchum, 1 Barbour, 592.—Sharswood.
[30 ] As to highways in general, see Com. Dig. tit. Chimin; Bac. Abr. Highways; Burn, J., Highways; Selw. N. P. Trespass, iv. 7; Saunders by Patterson, index, Ways; Bateman’s Turnpike Acts; 3 Chitty’s Crim. L. 565 to 668.
With respect to private ways, see in general Com. Dig. Chimin, D. Bac. Abr. Highways, C. Selw. N. P. Trespass, iv. 7. 1 Saunders by Patterson, 323, note 6, id. index, Ways.—Chitty.
[(n) ] Finch, Law, 31.
[31 ] The way by grant also includes a reservation, which is in effect a granting back of the right of way by the grantee. The grant or reservation assures the right of way, as appurtenant to every part of the land to which it is attached, and the grantee of any part is entitled to it. Watson vs. Bioren, 1 S. & R. 227. Underwood vs. Carney, 1 Cushing, 285. Unless every person to whom any part is conveyed has a right to the way, the right is totally extinguished by an alienation of part of the premises to which it is appurtenant, because it cannot be said that the owner of one part has better right than the owner of the other: consequently, if both could not have the right, the whole would be gone. The grantee of a right of way, however, has no title to use it as a passage to other land than that to which it was attached; nor can the owner of the soil, who had granted the right of way to a stranger, use it for such a purpose. The use of a way must be according to the grant or occasion of it, and not exceed it: so that a right of way over another’s ground to a particular place will not justify the use of it to go beyond that place Kirkham vs. Sharp, 1 Whart. 323. The grantee of a right of way is bound to keep it in repair. Wynekoop vs. Burger, 12 Johnson, 222. The grant of a right of way may be implied as well as expressed. If one sells to another a lot carved out of a larger lot belonging to the vendor, agreeably to a plan upon which are laid out certain space-ways or passages over the proprietor’s ground adjacent to the lot, contemplating at the same time that the vendee will erect brick buildings, to which such space-ways and passages are immediately necessary or useful, it must be considered as intending the grant of the right to the vendee to use those space-ways in common with the proprietor of the adjacent lot. Selden vs. Williams, 9 Watts, 13. Van Metz vs. Nankinson, 6 Whart. 307.—Sharswood.
[32 ] Prescription rests upon the presumption of a grant. But, to authorize such a presumption, the user must be adverse and under a claim of right. The period of twenty years has been adopted in England, in analogy to the statute of limitation in relation to land, which bars an entry after twenty years’ adverse possession. In Pennsylvania the period of limitation is twenty-one; and the same period has been adopted to give rise to the presumption. Dyer vs. Depui, 5 Whart. 584. So where a way has originally existed, it may be rebutted by evidence of non-user for the same period which gives rise to a presumption of extinguishment. But where it has been acquired expressly by grant or reservation, it will not be lost by non-user, unless there were a denial of title or other act on the adverse part to quicken the owner in the assertion of his right. Bute vs. Ihrie, 1 Rawle, 218. Twenty-one years’ actual occupation of land, adverse to a right of way and inconsistent with it, bars the right. Yeakle vs. Nace, 2 Whart. 123.—Sharswood.
[(o) ] Ibid. 63.
[(p) ] Co. Litt. 56.
[33 ] These are termed ways of necessity. It is always of strict necessity; and this necessity must not be created by the party claiming the right of way. It never exists where a man can get to his property through his own land. That a road through his neighbour’s would be a better road, more convenient, or less expensive, is not to the purpose. That the passage through his own land is too steep or too narrow does not alter the case. It is only where there is no way through his own land that the right of way over the land of another can exist. A right of way from necessity only extends to a single way. That a person claiming a way of necessity has already one way is a good plea, and bars the plaintiff. McDonald vs. Lindall, 3 Rawle, 492. It is founded on an implied grant, according to the legal maxim, quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest. Nichols vs. Luce, 24 Pick. 102. But whereabouts shall be the way? The owner of the land over which it exists has a right to locate it in the first instance, with this limitation, that it must be a convenient way. If he fails or refuses to locate, or makes an inconvenient or unreasonable location, the right devolves upon the grantee of the way. Russell vs. Jackson, 2 Pick. 274. The right of way of necessity ceases with the necessity which gave rise to it; so that if a public road is opened, or the grantee purchases other land which gives him a way over his own land, the first right of way ceases. Collins vs. Prentice, 15 Conn. 39. Pierce vs. Selleck, 18 Conn. 321. New York Life Ins. & Trust Co. vs. Milnor, 1 Barbour Ch. Rep. 353.—Sharswood.
[(q) ] Lord Raym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297.
[34 ] Lord Mansfield took notice of the inaccuracy of this passage in the case of Taylor vs. Whitehead, Doug. 716, in which it was determined that if a man has a right of way over another’s land, unless the owner of the land is bound by prescription or his own grant to repair the way, he cannot justify going over the adjoining land when the way is impassable by the overflowing of a river; but if public highways are foundrous, passengers are justified, from principles of convenience and necessity, in turning out upon the land next the road.—Christian.
The same law is laid down in Miller vs. Bristol, 12 Pick. 550. Williams vs. Safford, 7 Barbour, 309.—Sharswood.
[(r) ] 9 Rep. 97.
[(s) ] 11 Rep. 4.
[35 ] If two offices are incompatible, by the acceptance of the latter the first is relinquished and vacant, even if it should be a superior office. 2 T. R. 81.—Christian.
[36 ] The 49 Geo. III. c. 126 extends the provisions of this statute to other offices.—Chitty.
[(t) ] See book i. ch. 12.
[37 ] Dignities were originally annexed to the possession of certain estates in land, and created by a grant of those estates; or, at all events, that was the most usual course. Rex vs. Knollys, 1 L. Raym. 13. And although dignities are now become little more than personal distinctions, they are still classed under the head of real property, and, as having relation to land, in theory at least, may be entailed by the crown, within the statute de donis, or limited in remainder, to commence after the determination of a preceding estate tail in the same dignity. Nevill’s case, 7 Rep. 122. And if a tenant in tail of a dignity should be attainted for felony, the dignity would be only forfeited during his life, but after his decease would vest in the person entitled to it per formam doni. Stat. 54 Geo. III. c. 145. Even if a man in the line of entail of a dignity, but not actually possessed of it, were attainted of treason, his son, surviving him, might claim from the first acquirer, without being affected by the attainder of his father. 2 Hale’s Pl. Cr. 356. But if the father was in possession of the dignity at the time of such attainder, then his corruption of blood would be fatal to the claim of the son; and in the case of a dignity descendible to heirs general, the attainder for treason of any ancestor through whom the claimant of such dignity must derive his title, though the person attainted never was possessed of the dignity, will bar such claim. Rex vs. Purbeck. Show. P. C. 1. Law of Forfeiture, 86, 87.—Chitty.
[(u) ] Finch, i. 164.
[(w) ] 2 Roll. Abr. 191. Keilw. 196.
[(x) ] 2 Inst. 220.
[(y) ] [Editor: Illegible character] Inst. 314.
[(z) ] Co. Litt. 233. 2 Inst. 199. 11 Rep. 86.
[(a) ] These are properly buck, doe, fox, martin, and roe, but in a common and legal sense extend likewise to all the beasts of the forest; which, besides the other, are reckoned to be hart, hind, hare, boar, and wolf; and, in a word, all wild beasts of venary or hunting. Co. Litt. 233.
[(b) ] The beasts are hares, coneys, and roes; the fowls are either campesires, as partridges, rails, and quails, or sylvestres, as woodcocks and pheasants, or aquatiles, as mallards and herons. Co. Litt. 233.
Manwood, For. L. c. 4, s. 3, gives a different account. He says (and supports his opinion by referring to the Regist Brev. fol. 93) there are only two beasts of warren, the hare and the coney, and but two fowls of warren, the pheasant and the partridge.
[(c) ] Salk. 637.
[(d) ] Bro. Abr. tit. Warren, 3.
[38 ] 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.
[(e) ] Seld. Mar. Claus. I. 24. Dufresne, V. 503. Crag. de Jur. feod. II. 8, 15.
[(f) ] Cap. 47, edil. Oxon.
[(g) ] Cap. 20.
[(h) ] 9 Hen. III. c. 16.
[(i) ] 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.
[(l) ] 2 Si l. 8.
[(m) ] See them well digested in Hargrave’s notes on Co. Litt. 122.
[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, 1 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.
[(n) ] Finch, i. 162.
[(o) ] See book i. ch. 8.
[(p) ] Co. Litt. 144.
[(q) ] 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 personal, 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, rent-charge, 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 proceeds 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 perpetual 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 possibility 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 of judgments as real estate. Being a hereditament, however, descendible to the heir, it 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 4½ 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.
[(r) ] Co. Litt. 144.
[(s) ] Ibid. 142.
[(t) ] Ibid. 47.
[(u) ] Plowd. 13. 8 Rep.
[(w) ] Co. Litt. 144.
[(x) ] Ibid. 47.
[41 ] 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.
[(y) ] Litt. 213.
[(z) ] Co. Litt. 142.
[(a) ] Litt. 215.
[(b) ] Co. Litt. 143.
[42 ] A clear rent-charge must be free from the land-tax. Bradbury vs. Wright, Doug. 625.—Christian.
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 upon him only. Cary, 2, 92.—Chitty.
[43 ] 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, reserving 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.
[(c) ] 2 Inst. 19.
[(d) ] In Scotland this kind of small payment is called blanch-holding, or reditus albæ firmæ.
[(e) ] 2 Inst. 19.
[(f) ] Co. Litt. 143.
[44 ] 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.
[(g) ] Stat. 4 Geo. II. c. 28.
[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.
[(h) ] Co. Litt. 201.
[(i) ] 4 Rep. 73.
[(k) ] Co. Litt. 302. 1 Anders. 253.
[(l) ] 1 Saund. 287. Prec. Chanc. 555. Salk. 578.
[46 ] If the lessor dies before sunset on the day upon which the rent is demandable, it is clearly settled that the rent unpaid is due to his heir, and not to his executor; but, if he dies after sunset and before midnight, it seems to be the better opinion that it shall go to the executor, and not to the heir. 1 P. Wms. 178. Toller on Executors, 177, 178.—Christian.