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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 housebote, 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 IV. Ways. of ways (59); or the right of going over another man's ground (60). 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 (61); but of private ways, in which a particular man may have an interest and a right, though another be owner of the soil (62). This may be grounded on a which are special permission; as when the owner of the land grants grant, to another the liberty of passing over his grounds, to go to

(m) Co. Litt. 41.

(59) See post, 396, n. Vol. III. pp. 218, 241.

(60) A right of way over another man's ground, being an incorporeal hereditament, collateral to land, cannot be divested; the interest will not cease to exist, potentialiter, merely by non-user for a time. In this respect it resembles a right of common of pasture, a rent, or other incorporeal bereditament. (Saffyn's case, 5 Rep. 124.) It has been said, a necessary right of way also resembles a

right of common appendant, in not
being extinguished by unity of pos-
session. (Jorden v. Atwood, Owen,
122; but see infra, note (64).)

(61) Any reader who is disposed to
pursue inquiries into those branches
of the subject, which our author de-
clines here to enter upon, is referred
to Co. Litt. 56 a; Com. Dig. tit. Che-
min; Vin. Ab. tit. Highway; and
Catherine Austin's case, 1 Ventr. 189.
(62) See post, p. 396.

founded on

prescription,

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 [36] taking another *person in his company (n). 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 or exist by ope- land or houses may clearly be created. 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 at it; and I may cross his land for that purpose without trespass (o) (63). For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same (p) (64). By the law of the twelve tables at Rome, (n) Finch, Law, 31.

ration of law.

(0) Ibid. 63.

(63) But such a right of way must not be pleaded in general terms as a way of necessity; without showing how the lands over which the right of way is claimed, came to be subjected to that right; that form of pleading would imply that, whenever a man has not another way, he has a right to go over his neighbour's close. But that is not so. A private right of way must be founded in grant, actual or to be presumed ; (Bullard v. Harrison, 4 Mau. & Selw. 392;) and if an actual grant is found to specify a precise way, no circumstances can authorize the grantee to go out of the particular line specified. The way granted may happen, at some periods, to be over. flowed; but if that inconvenience has not been provided for in the grant, it seems, the grantee cannot, merely because the usual track is impassable, go over the grantor's land in another line. (Taylor v. Whitehead, 2 Dougl. 749; and see post, the next note but one.)

(p) Co. Litt. 56.

(64) A grant arising out of the implication of necessity, cannot be carried further than the necessity of the case requires. And if, on the ground of necessity, a grant of a new right of way is presumed, a prescription for another old right of way over the same lands will, it seems, be extinguished: and though the new way subsequently ceases to be necessary, and therefore the right to use it also ceases, it does not follow that the old right of way will revive; if the party claiming it has any other way, though a less convenient one, of reaching his own lands. (Holmes v. Goring, 2 Bingh. 85.) If, in the case last cited, the dictum, that

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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 (65): which was the established rule in public as well as private ways. And the law of England, in both (66) cases, seems to correspond with the Roman (q).

V. Offices, which are a right to exercise a public or private v. Offices employment, and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments (67);

(4) Lord Raym. 725; 1 Brownl. 212; 2 Show. 28; 1 Jon. 297.

possession is severed; that is contrary to the authority before cited in note (60), to Packer v. Welstead, (2 Sid. 39,) and to Dutton v. Taylor, (2 Lutw. 1489,) and seems not consistent with what was laid down in Robins v. Barnes (Hob. 131). When the question relates not to ways of necessity, but to ordinary prescriptive rights of way, or mere easements, the extinguishment of such rights by unity of possession thereof in fee with the same estate in the land over which they ran, seems not to be disputed. (Buckley v. Coles, 5 Taunt. 316.) And by other means such rights, if not absolutely extinguished, may at least be suspended; (Wright v. Rattray, 1 East, 381;) but ways of necessity do not seem to be extinguished by unity of possession. (Shury v. Pigott, 3 Bulstr. 340.) At any rate, they appear to be revivable; (Jenk. Cent. p. 20, c. 37;) or, if not, upon the same principle on which the first grant of the right is often presumed, although the effect of that implied grant were gone, yet, if the same positive necessity called for it, a similar presumption would be again made: but Serjeant Williams, in his learned note to Pomfret v. Ricroft, (1 Saund. 323 a) says, a way of necessity cannot be extinguished by unity of possession, for that is the very foundation of the right. And see Bull. N. P. 74 a.

(65) The doctrine of the text may

be true with respect to ways of implied necessity: but not so, perhaps, where the right of way is claimed under a specific grant: (see ante, the last note but one ;) if, in the latter case, the grantee complains of the bad condition of the road, and asks what remedy he has, if he is not allowed to go out of the prescribed line of road? he would probably be told now, as a party making a similar complaint was told long ago by Mr. Justice Suit, that "if he went that way be. fore in his shoes, he might now pluck on his boots." (Dike v. Dunston, Godb. 53; and see the 3rd note of Serjeant Williams to the case of Pomfret v. Ricroft, 1 Saund. 322 a.)

(66) Not in both. As to private ways, see the last note: but highways (as Lord Mansfield said in Taylor v. Whitehead, Dougl. 479,) are governed by a different principle. They are for the public service, and if the usual track is impassable, it is for the general good that people should be entitled to pass in another line.

(67) And if they savour of the realty as concerning lands or certain places, they are considered to be real property; and the inheritance of such offices, if not incapable of being alienated from a certain line of descendants, may be made the subject of an entail by the owner thereof. (Co. Litt. 20.)

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 (68), 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 (69). 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 (70). For the law pre[ *37] sumes that *he, who buys an office, will by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public (71).

(r) 9 Rep. 97.

(68) It is not universally true, that offices, even of public trust, cannot be granted for years: and it would be inconsistent to hold, that any of such offices, which may be granted for life, in tail or in fee, could not be granted for years. (Veale v. Priour, Hardr. 357; Jones v. Clerk, Hardr. 49; Rogers V. Frazer, 2 Show. 171.)

By the statute of 1 Geo. III. c. 23, the Judges of the common law courts at Westminster are to hold their offices during their good behaviour, notwithstanding any demise of the crown; but may be removed on an address of both houses of parliament.

(69) Speaking with technical precision, there can be no reversion of any office which is not an office of inheritance; with respect to other offices, though the word reversion may be loosely used in the grant thereof, they would be more properly called grants in futuro. (Young v. Stoell, Cro. Car. 479; The King v. Kemp, Skin. 447.) Though most ministerial

(s) 11 Rep. 4.

offices, which are not of special trust,
may be exercised by deputy, and all
offices which may be assigned, may
be exercised by deputy; (Lady Rus-
sel's case,
Cro. Jac. 18; Earl of
Shrewsbury's case, 9 Rep. 49;) yet,
an office which is of trust, however
humble the situation, cannot be exe-
cuted by deputy, unless the grant ex-
pressly permits this: (Dyer, 7 b, pl.
10) a fortiori it cannot be assigned.
(Grand Chamberlain's case, W. Jones,
121.)

(70) The sale and brokerage of offices is further restrained by the statutes of 49 Geo. III. c. 126, and of 6 Geo. IV. cc. 82, 83; and see Hartwell v. Hartwell, 4 Ves. 815; Card v. Hope, 2 Barn. & Cress. 674; 4 Dowl. & R. 172; Richardson v. Mellish, 2 Bing. 246.

(71) 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.-CH.)

VI. Dignities bear a near relation to offices. Of the na- VI. Dignities. ture 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 (72).

VII. Franchises are a seventh species. Franchise and VII. Franchises. 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 (73). (t) See Book i. ch. 12.

(72) 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 v. 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. (Nevil'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 VOL. II.

(u) Finch, L. 164.

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 v. Purbeck,
Show. P. C. 1; Law of Forfeiture, 86,
87.) But with respect to the descent
of land, after the death of a person
attainted, his descendants may in-
herit, though they may be obliged
to trace their descent through him.
Stat. 3 & 4 Gul. IV. c. 106.

(73) Our author, in the 17th chap-
ter of this volume, (p. 265,) following
Co. Litt. 114, informs us, that" what
is to arise by matter of record cannot
be prescribed for, but must be claimed
by grant, entered on record; such as,
for instance, the royal franchises of
deodands, felons' goods, and the like.
But the franchises of treasure-trove,
waifs, estray, and the like, may be
claimed by prescription; for they
arise from private contingencies, and
not from any matter of record." (And
see Keilway, 123 b, pl. 78; Constable's
case, 5 Rep. 109; Foxley's case, 5 Rep.
110.) In the case of The Abbot of
Strata Marcella, (9 Rep. 26 b, 27,)
the doctrine is laid down thus: Every
franchise, liberty, or privilege, either
depends on charter, and cannot be
claimed by prescription; (as bona et

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