from a park, in that it is not inclosed, 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 inclosed chase, extending only over a man's own Park. grounds. The word park indeed properly signifies an inclosure; but yet it is not every field or common, which g aentleman pleases to surround with a wall or paling, and to stock with a herd of deer, that is thereby constituted a legal park: for the king's grant, or at least immemorial prescription, is necessary to make it so (z). Though now the difference between a real park, and such inclosed 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 (a), except such as possess these franchises of forest, chase, or park. Free warren is a similar franchise, erected Free warren. for preservation or custody (which the word signifies) of beasts and fowls of warren (b); which, being feræ naturæ,

(z) Co. Litt. 233. 2 Inst. 199. 11 Rep. 86.

roes; the fowls are either campestres, as
partridges, rails, and quails; or sylves-
tres, as woodcocks and pheasants; or
aquatiles, as mallards and herons. (Ib.)

(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 venery or hunting. (Co. Litt. 233). (b) The beasts are hares, conies, and the pheasant and the partridge.-ED.]

the diversity between a park and a
chase is, that a park is inclosed and a
chase is always open: the last in de-
gree is the liberty and franchise of a
free warren.
And therefore, because
a forest in dignity is both the highest
and the greatest franchise, the same
doth comprehend in it a chase, a park,
and a free warren; as every general
doth comprehend the special." One

[Manwood, For. L. c. 4, s. 3, gives a different account: he says, (and supports his opinion by referring to the Regist. Brev. fol. 93), there are only two beasts of warren, the hare and the coney, and but two fowls of warren,

part of the foregoing statement is not
sufficiently precise: inclosure, or non-
inclosure, is not the only distinction be-
tween a park and a chase. Our author,
in the text above, teaches us, that a
park can only be made in a man's own
property, but a chase may extend over
the freeholds of others. (Case of Forests,
12 Rep. 22. 4 Inst. 298).

every one had a natural right to kill as he could; but upon [ *39] *the introduction of the forest laws, at the Norman conquest,

Free fishery.

as will be shewn hereafter (69), these animals being looked
upon as royal game and the sole property of our savage mo-
narchs, 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 (c). This
franchise is almost fallen into disregard, since the new sta-
tutes 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 that a man and his heirs have some-
times free warren over another's ground (70) (d).
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 (e); though the making
such grants, and by that means appropriating what seems to
be unnatural to restrain, the use of running water, was pro-
hibited 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 (ƒ). This

(c) Salk. 637.

(d) Bro. Abr. tit. Warren, 3.
(e) Seld. Mar. Claus. i. 24. Du-

fresne, v. 503. Crag. de Jur. Feod. II. 8. 15.

(f) Cap. 47, edit. Oxon.

(69) See post, chap. 27, and the notes saying, and the appurtenances, the war

thereto.

(70) If the king has granted a warren within a manor, and the owner infeoffs the king of the manor, without

ren will not pass from the grantor: for a man may well have a free warren in the lands of others. (Dyer, 30 b, pl. 309).

opening was extended by the second (g) and third (h) charters of Henry III. to those also that were fenced under Richard I.; so that a franchise of free fishery ought now to

[ *40 ]

be at least as old as the reign of Henry II. This differs Several fishery. from a several fishery; because he that has a several fishery must also be (or at least derive his right from) the owner of the soil (i), which in a free fishery is not requisite (71). It differs also from a common of piscary before mentioned, in that the free fishery is an exclusive right, the common of piscary is not so: 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 (k). 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 (1). But to consider such right as originally a flower of the prerogative, till restrained by magna charta, and derived by royal grant (previous to the reign of Richard I.) to such as now claim it by prescription, and to destinguish it (as we have done) from a several and a common of fishery, may remove some difficulties in respect to this matter, with which our books are embarrassed. For it must be acknowledged, 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 (m) which (g) Cap. 20. (k) F. N. B. 88. Salk. 637. (1) 2 Sid. 8,

(h) 9 Hen. III. c. 16.

(i) M. 17 Edw. IV. 6. P. 18 Edw. IV. 4. T. 10 Hen. VII. 24. 26. Salk. 637.

(m) See them well digested in Hargrave's notes on Co. Litt. 122, (23).

of the soil, does not yet appear to be
quite settled. (Seymour v. Lord Courte-
nay, 5 Burr. 2816, Kinnersley v. Orpe,
Dougl. 56 a). From the case of Sey-
mour v. Lord Courtenay we learn, that
a right of several fishery does not ne-
cessarily imply an exclusive right, but
may exist where no other person has a
co-extensive right in the subject claimed,

VIII. Corodies.

IX. Annuities.

nuity differs

from a rent

charge.

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.

VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one's maintenance (n). In lieu of which (especially when due from ecclesiastical persons) a pension or sum of money is sometimes substituted (o). 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 In what an an- persons. An annuity is a thing very distinct from a rentcharge, with which it is frequently confounded: a rentcharge 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 (p). Therefore, if a man by deed grant to another the sum of 201. per annum, without expressing out of what lands it shall issue, no land at all shall be 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 (q); and yet a man may have a real estate in it, though his security is merely personal (72).

(n) Finch. L. 162.

(0) See book

ch. 8.

(p) Co. Litt. 144.
(q) Ibid. 2.

(72) This appears to require some explanation. If an annuity (not charged on lands) be granted to a man and his heirs, it is a fee simple personal. (Co. Litt. 2 a). And Mr. Hargrave, in his note upon the passage just cited, says, though an annuity of inheritance is held to be forfeitable for treason, as an hereditament; (7 Rep. 34 b); yet,

being only personal, it is not an hereditament within the statute of mortmain, (7 Edw. I. st. 2), nor is it entailable within the statute de donis. Lord Coke again says, (Co. Litt. 20 a), "if I, by my deed, for me and my heirs, grant an annuity to a man, and the heirs of his body, this concerneth no land, nor savoureth of the realty."

rent.

X. Rents are the last species of incorporeal heredita- X. Rents. ments. The word rent or render, reditus, signifies a compensation or return, it being in the nature of an acknowledgment given for the possession of some corporeal inheritance (q). It is defined to be a certain profit issuing yearly Definition of a 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 (r). 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 (s): yet, as it is to be produced out of the profits of lands and tenements, as a recompense for being permitted to hold or en(g) Co. Litt. 144.

(r) Ibid. 142.

(And see Earl of Stafford v. Buckley, 2 Ves. Sen. 177. Holdernesse v. Carmarthen, 1 Br. 382. Aubin v. Daly, 4 Barn. & Ald. 59). Some of the diversities between a rent and an annuity are thus laid down, in the 30th chapter of the Doctor and Student, Dialogue 1.—

Every rent, be it rent-service, rentcharge, or rent-seck, is going out of land. Also, of an annuity there lieth no action, but only a writ of annuity: but of a rent the same action may lie as doth of land. Also, an annuity is never taken for assets, because it is no freehold in the law, nor shall it be put in execution upon a statute merchant, statute staple, or elegit, as a rent may." No doubt, when an annuity is granted, so as to bind both the person and real estate of

(s) Co. Litt. 47.

the grantor, the grantee hath his elec-
tion, either to bring a writ of annuity,
treating his demand as a personal onė
only, or to distrain upon the land, as
for a real interest. (Co. Litt. 144 b).
The definition which Fitzherbert (N.
B. p. 152) gives of an annuity is, that
it either proceeds from the lands or the
coffers of another. Where it is charg-
ed upon land, it may be real or person-
al, at the election of the holder. If it
is out of the coffers, it is personal only
as to the remedy; but the property it-
self is real as to its descent to the heir.
And this seems to be the only sense in
which an annuity, for which the secu-
rity is merely personal, can be called
real estate. (Turner v. Turner, Ambl.
782).