Sivut kuvina

feeding on the herbage and vesture of the soil, which renews annually; but common of turbary, and the rest,9 are a right of carrying away the very soil itself.

[35] 4. Common of estovers or estouviers, 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 hays, 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

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.† 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

m Co. Litt. 41.

9 Ninth edition reads, "those after-mentioned."

8 Previously, "of the same signification with."

+-+ Quoted, 5 Conn. 315; 65 Ga. 470; 11 Ind. 68. Cited, 42 Ind. 48; 19 Ill. 564.

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 grounded on a special permission; as when the owner of the land grants to another a 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 [36] person in his company. A way may be also by prescription; as if all the owners and occupiers of such a farm have immemorially used to cross another's ground:9 for this immemorial usage supposes an original grant, whereby a right of way thus appurtenant to land9 may clearly be created. †A right of way may also arise by act and operation of law [see note 10, page 79]: 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 at it; and I may cross his land for that purpose without trespass. For when the law doth give anything to one, it giveth impliedly whatsoever is necessary for enjoying the same. 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 [see note 11, page 80]; which was the established rule in public as well as private ways.

n Finch. law. 31.

O Ibid. 63.

p Co. Litt. 56.

9 Ninth edition inserts here, "all the inhabitants of such a hamlet, or."

9 Ninth edition reads, "such a ground, for such a particular purpose.

9 Ninth edition inserts, "or houses."

**Quoted, 1 Gill & J. 378; 19 Ill. 565 (last sentence). Cited, 23 Ohio St. 619.

+-+ Quoted, 46 Ind. 342; 111 III, 370. Cited, 3 Jones (N. C.) 173.

And the law of England, in both cases, seems to correspond with the Roman.q*

V. †Offices, which are a right to exercise a public or private employment, and 3 to 34 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. 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; for those may be executed by deputy. Also, by statute 5 and 6 Edw. VI. c. 16. no public office shall be sold, under pain of disability to dispose of or hold it. For the law presumes that [37] he, who buys an office, will by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public.¶

VI. Dignities bear a near relation to offices. Of the nature of these we treated at large in the former book:t

q Lord Raym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297.

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t See book I. ch. 12.

3 In errata of second edition.

9 Ninth edition inserts here, "(a few only excepted)."

*Cited, 1 Dall. 363; 31 Me. 25; 7 Cush. 410; 54 Am. Dec. 728; 2 McCord, 447; 19 Ill. 564, 565.

+ Quoted, 7 Serg. & R. 391; 17 Serg. & R. 243; 4 Dev. 17: 13 Or. 385; 45 Ill. 414; 36 Miss. 288; 72 Am. Dec. 172; 4 Wis. 657. Criticised, 45 Ill. 400. Cited, Charlt. R. M. 402; 39 Ga. 257, 275; 21 Ill. 69.

+- Quoted, 53 Ill. 431.

| Cited, 10 Minn. 375; 2 Swan, 547.

¶ Cited, 70 N. Y. 525; 2 Johns. 71; 21 Ill. 69; 18 Ind. 392; 2 Duval, 458; 41 Mo. 31; 1 Ohio St. 670.

it will therefore be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate.


VII. *Franchises are a seventh species. and liberty are used as synonymous terms: and their definition is," 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." ||

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

u Finch. L. 164.

W 2 Roll. Abr. 191. Keilw. 196.

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Quoted, 20 Pa. St. 419: 47 Pa. St. 468; 86 Am. Dec. 555; 1 Ohio St. 586; 95 Ill. 575, 576; 25 Conn. 36; 44 Mich. 604; 13 Bush, 189; 58 Ala. 59. Cited, 18 Iowa, 333; 14 Minn. 328; 19 Minn. 125; 11 Or. 354.

- Quoted, 62 Cal. 106; 92 Ill. 428.

193; 49 Ala. 146; 54 Ga. 409.

Cited, 14 N. Y. 506; 67 Am. Dec.

- Quoted, 32 Ala. 38; 70 Am. Dec. 526.

1- Quoted, 4 Wheat. 658, 663; 7 Serg. & R. 564. Cited, 11 Peters, 618-621; 6 How. 541; 7 Pick. 520.

- Quoted, 4 Wheat. 657, 701; 62 Cal. 106; 9 Ohio St. 623; 14 La. 395; 33 Am. Dec. 590; 9 Gill & J. 407. Cited, 34 Me. 418; 56 Am. Dec. 670; 36 Tex. 445; 38 Ga. 610; 95 Am. Dec. 410.

**Cited, 11 Me. 124; 26 Am. Dec. 518; 7 Pick. 520; 6 Dana, 107; 2 Marsh. J. J. 228; 68 N. Y. 555, distinguishing franchise and the corporeal property held under a franchise.

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 execute 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: 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. 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

x 2 Inst. 220.

y 4 Inst. 314.

5 Previously, "and."

*** Quoted, 92 Ill. 428.

Cited as to tolls, 5 Watts & S. 266; 23 Wend. 239; 10 Conn. 535; 25 Conn. 37; 39 Tex. 478; market, 33 Ill. 419; 85 Am. Dec. 284.

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