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park: for the king's grant, or at least immemorial prescription, is necessary to make it so." 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, 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; which, being feræ naturæ, every one had a natural right to kill as he could: but upon [39] the introduction of the forest laws, at the Norman conquest, as will be shewn 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 game-keeper: 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. 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 antient 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 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, conies, and roes: the fowls are either campestres, as partridges, rails, and quails; or sylvestres, as woodcocks and pheasants; or aquatiles, as mallards and herons. (ibid.) Salk. 637.


that a man and his heirs have sometimes free-warren over another's ground. 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: though the making such grants, and by that means appropriating whai 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. This opening was extended, by the second and third 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 the owner of the soil,it 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 exclusive [40] right, the common of piscary is not so [see note 12, page 80]: 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. 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. But the considering9 such right

d Bro. Abr. tit. Warren. 3.

e Seld. Mar. claus. I. 24. Dufresne. V. 503. Crag. de Jur. feod II. 8. 15.

f cap. 47. edit. Oxon.

g cap. 20.

h 9 Hen. III. c. 16.

ib M. 17 Edw. IV. 6. P. 18 Edw. IV. 4. T. 10 Hen. VII. 24. 26. Salk. 637,5

k F. N. B. 88. Salk. 637.

1 2 Sid. 8.

9 Ninth edition inserts here, "(or at least derive his right from).” 9 Ninth edition reads "to consider."

*Cited, 6 N. J. L. 74.

+ Cited and followed, 3 Ired. 283; 38 Am. Dec. 724; 7 Pick. 80; 111 Ill. 609.

as originally a flower of the prerogative, till restrained by magna carta, and derived by royol grant (previous to the reign of Richard I.) to such as now claim it oy prescription, may remove some difficulties in respect to this matter, with which our books are embarrassed.9* VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one's maintenance. In lieu of which (especially when due from ecclesiastical persons) a pension or sum of money is sometimes substituted." And these may be reckoned another species of incorporeal hereditaments; though not chargeable on, or issuing from, any corporeal inheritance, but only charged on the person of the owner in respect of such his inheritance. To these may be added,

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 [see note 14, page 86], with which it is frequently confounded: a rent-charge being a burthen imposed upon and issuing out of lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor. Therefore, if a man by deed grant to another the sum of 201. per anuum, without expressing out of what lands it shall issue, no land at all shall be

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9 Ninth edition inserts here, "and to distinguish it (as we have done) from a several and a common of fishery.'

9 Ninth edition adds, "For it must be acknowleged, that the rights and distinctions of the three species of fishery are very much confounded in our law-books; and that there are not wanting respectable authorities; 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." [ See them well digested in Hargrave's notes on Co. Litt. 122. And see note 13, page 85.]

*Cited as to free fishery, 7 Pick. 80; 8 Cush. 352; 54 Am. Dec. 766; 60 N. Y. 64, 65; 1 Halst. 74; 10 Am. Dec. 365; 12 Green, C. E. 640; 3 Ired. 279; 33 Am. Dec. 724; 5 Ired. 127.

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 :P and yet a man may have a real estate in it, though his security is merely personal.*

[41] X. 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 acknowlegment given for the possession of some corporeal inheritance. It is defined to be a certain profit issuing yearly out of lands and tenements corporeal.? It must be a profit; yet there is no occasion for it to be, as it usually is, a sum of money for spurs, capons, horses, corn, and other matters may be rendered, and frequently are rendered by way of rent. It may also consist in services or manual operations; as, to plough so many acres of ground, to attend the king or the lord to the wars, and the like; which services in the eye of the law are profits. This profit must also be certain; or that which may be reduced to a certainty by either party. It must also issue yearly;¶ though there is no occasion for it to issue every successive year; but it may be reserved every second, third, or fourth year: yet, as it is to be produced out of the profits of lands and tenements, as a recompense for being permitted to hold 5or5 enjoy them, it ought to be reserved yearly, because those profits do annually arise p Ibid. 2.

q Co. Litt. 144.

r Ibid. 142.

s Ibid. 47.

5 Previously, "and."

*Cited, 2 Conn. 575; 6 Dana, 107; 1 Ohio St. 358.

+-t Quoted, 6 N. Y. 458.

1- Quoted, 4 Denio, 412; 12 N. Y. 300; 33 N. J. Eq. 659. Citea, 13 Wend. 291; 15 Ohio St. 193.

I-¶ Quoted, 41 N. Y. 483. Cited, 6 N. Y. 458.

-¶ Quoted, 40 Ga. 522.

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. 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." 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: though it doth not affect the inheritance, and is no legal rent in contemplation of law.†

There are at common lawx three manner of rents, rent-service, rent-charge, and rent-seck. Rent-service: is so called [42] because it hath some corporal service incident to it, as at the least fealty, or the feodal oath of fidelity. 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 rent-charge, is where the owner of the rent hath no future interest, or revert Plowd. 13. 8 Rep. 71.

u Co. Litt. 144.

w Ibid. 47.

x Litt. 213.

y Co. Litt. 142.

z Litt. 215.

**Quoted, 4 Denio, 412.

+Cited, 2 Dutch. 249; 3 Green, 219; 3 Hen. & M. 483; 1 Bibb, 606;: 33 Mo. 405; 33 N. J. Eq. 659; 52 Ga. 211.


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