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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 (60): which was the established rule in public as well as private ways. And the law of England, in both (61) cases, seems to correspond with the Roman (q).

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

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 "a way by prescription is extinguished by unity of possession," was only used with reference to the circumstances then before the court, it need not be questioned: but if it was intended to be understood as a general proposition, that a way of necessity is extinguished by unity of possession, and cannot be revived when the possession is severed; that is contrary to the authority before cited in note (56), to Packer v. Welstead, (2 Sid. 39), and to Dutton v. Tayler, (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. Rycroft, (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.

(60) 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, note (58)); 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 before 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).

(61) Not in both. As to private ways, see the last note: but highways, (as Lord Mansfield said in Taylor v. Whitehead, Dougl. 749), are governed by a different principle. They are

V. Offices, which are a right to exercise a public or pri- v. Offices. vate employment, and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments (62); 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 (63), 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 (64). Also, by statute 5 & 6 Edw. VI. c. 16, no

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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.

(62) 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).

Judges of the common law courts at
Westminster are to hold their offices
during their good behaviour, notwith-
standing any demise of the crown; but
may be removed on an address of both
houses of parliament.

(64) 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 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 Russel's case, Cro. Jac. 18. Earl of Shrewsbury's case, 9 Rep. 49); yet, an office which is of trust, By the statute of 1 Geo. III. c. 23, the however humble the situation, cannot

(63) 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).

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VI. Dignities.

public office (a few only excepted) shall be sold, under pain of disability to dispose of or hold it (65). For the law presumes 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 †.

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 (66).

(t) See Book i. ch. 12.

be executed by deputy, unless the grant expressly permits this: (Dyer, 7 b, pl. 10): a fortiori it cannot be assigned. (Grand Chamberlain's case, W. Jones, 121).

(65) The sale and brokerage of of fices is further restrained by the statute of 49 Geo. III. c. 126; 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.

(66) 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

† If two offices are incompatible, by the acceptance of the latter the first is relinquished and vacant, even if it

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 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).

should be a superior office. 2 T. R. 81. - Сн.

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 (67). 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 In what they of persons. It is likewise a franchise, for a number of persons

(4) Finch. L. 164.

(w) 2 Roll. Abr. 191. Keilw. 190.

consist.

(67) Our author, in the 17th chapter 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, estrays, 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 catalla felonum, &c.); or lies in prescription and usage

in pais, without the help of any char-
ter, (as wreck, waif, estrays, &c.). Fran-
chises by charter may be either before
time of memory, or within that time.
In the first case, such charters not be-
ing themselves pleadable as records,
they ought to have the aid and support
of some other matter of record, within
time of memory; either shewing them
to have been judicially allowed by some
court of competent jurisdiction, or to
have been confirmed by charter of re-
cord within time of legal memory.
Usage alone will not support grants by
charter before time of memory. But
grants which may be claimed by pre-
scription, as they may be originally
claimed by usage, which is a matter in
pais, so usage may support them with-
out the aid of any record, either of cre.
ation, allowance, or confirmation.

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 [*38] county; *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 (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.

Forest.

Chase.

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) (68). But a chase differs

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(68) The doctrine laid down in the text accords with the opinions declared in the case of Lord Willoughby de Brooke v. Lord Latimer, (Keilw. 15, 16), and is no doubt true, as a general position. But, where by the express words of a charter, and proper special provisoes, the king has given authority for the administration of justice according to the forest laws, within a district which has been legally granted to a subject as a forest, that district is subject

to the forest laws: but without such express words in the charter, conferring the special jurisdiction, a forest in the hands of a subject is but a chase. (Case of Leicester Forest, Cro. Jac. 155. S. C. Jenk. Cent. 316. Rex v. Brydges, Palm. 62, 90. S. C. 2 Bulstr. 298, Manwood For. L., c. 3. 4 Inst. 314). Manwood, (c. 1, s. 5), says, "a forest is the highest franchise of noble and princely pleasure: next in degree unto it is a liberty of a frank chase:

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