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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. right of common appendant, in not 218, 241.
being extinguished by unity of pos(60) A right of way over another session. (Jorden v. Atwood, Owen, man's ground, being an incorporeal 122 ; but see infra, note (64).) hereditament, collateral to land, can- (61) Any reader who is disposed to not be divested; the interest will not pursue inquiries into those branches cease to exist, potentialiter, merely of the subject, which our author deby non-user for a time. In this re- clines here to enter upon, is referred spect it resembles a right of common to Co. Litt. 56 a ; Com. Dig. tit. Cheof pasture, a rent, or other incorpo- min ; Vin. Ab. tit. Highway; and real bereditament. (Saffyn's case, 5 Catherine Austin's case, 1 Ventr. 189. Rep. 124.) It has been said, a ne- (62) See post, p. 396. cessary right of way also resembles a
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 prescription, 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,
ration of law.
(n) Finch, Law, 31.
(0) Ibid. 63.
(p) Co. Litt. 56.
(63) But such a right of way must (64) A grant arising out of the imnot be pleaded in general terms as a plication of necessity, cannot be carway of necessity ; without showing ried further than the necessity of the how the lands over which the right of case requires. And if, on the ground way is claimed, came to be subjected of necessity, a grant of a new right of to that right; that form of pleading way is presumed, a prescription for would imply that, whenever a man another old right of way over the same has not another way, he has a right lands will, it seems, be extinguished : to go over his neighbour's close. But and though the new way subsequently that is not so. A private right of way ceases to be necessary, and therefore must be founded in grant, actual or to the right to use it also ceases, it does be presumed ; (Bullard v. Harrison, 4 not follow that the old right of way Mau. & Selw. 392 ;) and if an actual will revive ; if the party claiming it grant is found to specify a precise way, has any other way, though a less conno circumstances can authorize the venient one, of reaching his own lands. grantee to go out of the particular line (Holmes v. Goring, 2 Bingh. 85.) If, specified. The way granted may hap- in the case last cited, the dictum, that pen, at some periods, to be over- a way by prescription is extinflowed; but if that inconvenience has guished by unity of possession,” was not been provided for in the grant, it only used with reference to the cirseems, the grantee cannot, merely be- cumstances then before the court, it cause the usual track is impassable, need not be questioned: but if it was go over the grantor's land in another intended to be understood as a geneline. (Taylor v. Whitehead, 2 Dougl. ral proposition, that a way of necessity 749; and see post, the next note but is extinguished by unity of possesone.)
sion, and cannot be revived when the
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 (9).
V. Offices, which are a right to exercise a public or private v. Ofices 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 be true with respect to ways of im-
Litt. 20.) (65) The doctrine of the text may
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, extor
tion, or other unlawful means, make his purchase good, to the manifest detriment of the public (71).
(68) It is not universally true, that offices, which are not of special trust, offices, even of public trust, cannot be may be exercised by deputy, and all granted for years : and it would be in- offices which may be assigned, may consistent to hold, that any of such be exercised by deputy; (Lady Rusoffices, which may be granted for life, sel's case, Cro. Jac. 18; Earl of in tail or in fee, could not be granted Shrewsbury's case, 9 Rep. 49;) yet, for years. (Veale v. Priour, Hardr. an office which is of trust, however 357;Jones v. Clerk, Hardr. 49; Rogers humble the situation, cannot be exev. Frazer, 2 Show. 171.)
cuted by deputy, unless the grant exBy the statute of 1 Geo. III. c. 23, pressly permits this : (Dyer, 7 b, pl. the Judges of the common law courts 10 :) a fortiori it cannot be assigned. at Westminster are to hold their offices (Grand Chamberlain's case, W. Jones, during their good behaviour, notwith- 121.) standing any demise of the crown; (70) The sale and brokerage of but may be removed on an address of offices is further restrained by the both houses of parliament.
statutes of 49 Geo. III. c. 126, and (69) Speaking with technical pre- of 6 Geo. IV. cc. 82, 83; and see cision, there can be no reversion of Hartwell v. Hartwell, 4 Ves. 815 ; any office which is not an office of in- Card v. Hope, 2 Barn. & Cress. 674 ; heritance ; with respect to other of- 4 Dowl. & R. 172; Richardson v. fices, though the word reversion may Mellish, 2 Bing. 246. be loosely used in the grant thereof, (71) If two offices are incompatible, they would be more properly called by the acceptance of the latter the grants in futuro. (Young v. Stoell, first is relinquished and vacant, even Cro. Car. 479; The King v. Kemp, if it should be a superior office. (2T. Skin. 447.) Though most ministerial 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.
(u) Finch, L. 164.
(72) Dignities were originally an- heirs general, the attainder for treason nexed to the possession of certain es- of any ancestor, through whom the tates in land, and created by a grant claimant of such dignity must derive of those estates; or, at all events, his title, though the person attainted that was the most usual course. (Rex never was possessed of the diguity, y. Knollys, 1 L. Raym. 13.) And al- will bar such claim. (Rex v. Purbeck, though dignities are now become little Show. P. C. 1; Law of Forfeiture, 86, more than personal distinctions, they 87.) But with respect to the descent are still classed under the head of real of land, after the death of a person property ; and, as having relation to attainted, his descendants may inland, in theory at least, may be en- herit, though they may be obliged tailed by the crown, within the statute to trace their descent through him. de donis ; or limited in remainder, to Stat. 3 & 4 Gul. IV. c. 106. commence after the determination of (73) Our author, in the 17th chapa preceding estate tail in the same ter of this volume, (p. 265,) following dignity. (Nevil's case, 7 Rep. 122.) Co. Litt. 114, informs us, that“ what And if a tenant in tail of a dignity is to arise by matter of record cannot should be attainted for felony, the dig. be prescribed for, but must be claimed nity would be only forfeited during by grant, entered on record ; such as, his life, but, after his decease, would for instance, the royal franchises of vest in the person entitled to it per deodands, felons' goods, and the like. formam doni. (Stat. 54 Geo. III. c. But the franchises of treasure-trove, 145.) Even if a man in the line of waifs, estray, and the like, may be entail of a dignity, but not actually claimed by prescription; for they possessed of it, were attainted of trea- arise from private contingencies, and son, his son, surviving him, might not from any matter of record.” (And claim from the first acquirer, without see Keilway, 123 b, pl. 78 ; Constable's being affected by the attainder of his case, 5 Rep. 109; Foxley's case, 5 Rep. father. (2 Hale's Pl. Cr. 356.) But 110.) In the case of The Abbot of if the father was in possession of the Strata Marcella, (9 Rep. 26 b, 27,) dignity at the time of such attainder, the doctrine is laid down thus : Every then his corruption of blood would be franchise, liberty, or privilege, either fatal to the claim of the son ; and in depends on charter, and cannot be the case of a dignity descendible to claimed by prescription ; (as bona et