Sivut kuvina

cessary wood, for the use or furniture of a house or farm, from off another's estate. The Saxon word, bote, is used by us as synonymous to the French estorers: 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 of ways; or the right of going over another man's ground (56). 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 (57); but of private ways, in which a particular man

(m) Co. Litt. 41.

IV. Ways.

(56) A right of way over another pendant, in not being extinguished by man's ground, being an incorporeal he- unity of possession. (Jorden v. Atwood, reditament, collateral to land, cannot Owen, 122; but see infra, note (59)). be divested; the interest will not cease (57) Any reader who is disposed to to exist, potentialiter, merely by non- pursue inquiries into those branches of user for a time. In this respect it re- the subject, which our author declines sembles a right of common of pasture, here to enter upon, is referred to Co. a rent, or other incorporeal beredita- Litt. 56 a. Com. Dig. tit. Chemin. Vin. ment. (Satyn's case, 5 Rep. 124). It Ab. tit. Highway, and Catherine Aushas been said, a necessary right of way tin's case, 1 Ventr. 189. also resembles a right of common ap

may have an interest and a right, though another be owner of
the soil. This may be grounded on a special permission; as which are

founded on when the owner of the land grants to another the liberty of

grant, passing over his grounds, to go to 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 taking another * person [*36 ] in his company (n). A way may be also by prescription: as prescription, 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 land or houses may clearly be created. A right of way may also arise by act and oper- or exist by operation of law: for, if a man grants me a piece of ground in

ation of law. 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) (58). For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same (p) (59). By the (n) Finch. Law, 31.

(0) Ibid. 63.

(p) Co. Litt. 56.

(58) But such a right of way must not cannot, merely because the usual track be pleaded in general terms as a way is impassable, go over the grantor's of necessity: that form of pleading land in another line. (Taylor v. Whitewould imply that, whenever a man has head, 2 Dougl. 749. and see post, not another way, he has a right to go note (60)). over his neighbour's close. But that (59) A grant arising out of the imis not so. A private right of way must plication of necessity, cannot be carried be founded in grant, actual or to be further than the necessity of the case presumed ; (Bullard v. Harrison, 4 Mau. requires. And if, on the ground of ne& Selw. 392); and if an actual grant cessity, a grant of a new right of way is is found to specify a precise way, no presumed, a prescription for another old circumstances can authorize the grantee right of way over the same lands will, to go out of the particular line specified. it seems, be extinguished: and though The way granted may happen, at some the new way subsequently ceases to be periods, to be overflowed; but if that necessary, and therefore the right to inconvenience has not been provided use it also ceases, it does not follow for in the grant, it seems, the grantee that the old right of way will revive;


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 (9).

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

if the party claiming it has any other Cent. p. 20, c. 37); or, if not, upon the way, though a less convenient one, of same principle on which the first grant reaching his own lands. (Holmes v. of the right is often presumed, although Goring, 2 Bingh. 85). If, in the case the effect of that implied grant were last cited, the dictum, that “a way by gone, yet, if the same positive necesprescription is extinguished by unity sity called for it, a similar presumpof possession," was only used with re- tion would be again made: but Serjeant ference to the circumstances then be- Williams, in his learned note to Pomfore the court, it need not be question- fret v. Rycroft, (1 Saund. 323 a) says, ed: but if it was intended to be under- a way of necessity cannot be extinstood as a general proposition, that a guished by unity of possession, for that way of necessity is extinguished by is the very foundation of the right. unity of possession, and cannot be re- And see Bull. N. P. 74 a. vived when the possession is severed; (60) The doctrine of the text may that is contrary to the authority before be true with respect to ways of implied cited in note (56), to Packer v. Wel necessity: but not so, perhaps, where stead, (2 Sid. 39), and to Dutton v. the right of way is claimed under a Tayler, (2 Lutw. 1489); and seems specific grant: (see ante, note (58) ); not consistent with what was laid if, in the latter case, the grantee comdown in Robins v. Barnes, (Hob. plains of the bad condition of the road, 131). When the question relates not and asks what remedy he has, if he is to ways of necessity, but to ordinary not allowed to go out of the prescribed prescriptive rights of way, or mere line of road? he would probably be easements, the extinguishment of such told now, as a party making a similar rights by unity of possession thereof complaint was told long ago by Mr. in fee with the same estate in the land Justice Suit, that “if he went that way over which they ran, seems not to be before in his shoes, he might now pluck disputed. (Buckley v. Coles, 5 Taunt. on his boots." (Dike v. Dunston, Godb. 316). And by other means such rights, 53; and see the 3rd note of Serjeant if not absolutely extinguished, may at Williams to the case of Pomfret v. least be suspended; (Wright v. Rat- Ricroft, 1 Saund. 322 a). tray, 1 East, 381); but ways of ne- (61) Not in both. As to private cessity do not seem to be extinguished ways, see the last note: but highways, by unity of possession. (Shury v. (as Lord Mansfield said in Taylor v. Pigolt, 3 Bulstr. 340). At any rate, Whitehead, Dougl. 749), are governthey appear to be revivable; (Jenk. ed 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 (r) 9 Rep. 97.

(s) 11 Rep. 4.

for the public service, and if the usual Judges of the common law courts at track is impassable, it is for the general Westminster are to hold their offices good that people should be entitled to during their good behaviour, notwithpass in another line.

standing any demise of the crown; but (62) And if they savour of the real- may be removed on an address of both tyas concerning lands or certain houses of parliament. places, they are considered to be real (64) Speaking with technical preciproperty; and the inheritance of such sion, there can be no reversion of any offices, if not incapable of being alien- office which is not an office of inheritated from a certain line of descendants, ance; with respect to other offices, may be made the subject of an en- though the word reversion may be tail by the owner thereof. (Co. Litt. loosely used in the grant thereof, they 20).

would be more properly called grants (63) It is not universally true, that in futuro. (Young v. Stoell, Cro. Car. offices, even of public trust, cannot be 479. The King v. Kemp, Skin. 447). granted for years: and it would be in- Though most ministerial offices, which consistent to hold, that any of such of- are not of special trust, may be exercised fices, which may be granted for life, in by deputy, and all offices which may tail or in fee, could not be granted for be assigned, may be exercised by deyears. (Veale v. Priour, Hardr. 357. puty; (Lady Russel's case, Cro. Jac. Jones v. Clerk, Hardr. 49. Rogers v. 18. Earl of Shrewsbury's case, 9 Rep. Frazer, 2 Show. 171).

49); yet, an office which is of trust, By the statute of I Geo. III.c. 23, the however humble the situation, cannot

[ * 37 ]

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 t.

VI. Dignities bear a near relation to offices. Of the nature of these we treated at large in the former book((): 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).

(1) See Book i. ch. 12.

be executed by deputy, unless the in the same dignity. (Nevil's case, 7 grant expressly permits this: (Dyer, Rep. 122). And if a tenant in tail of 7 b, pl. 10): a fortiori it cannot be as- a dignity should be attainted for felosigned. (Grand Chamberlain's case, W. ny, the dignity would be only forfeited Jones, 121).

during his life, but, after his decease, (65) The sale and brokerage of of- would vest in the person entitled to it fices is further restrained by the statute per formam doni. (Stat. 54 Geo. III. c. of 49 Geo. III. c. 126; and see Hart. 145). Even if a man in the line of en. well v. Hartwell, 4 Ves. 815. Card v. tail of a dignity, but not actually posHope, 2 Barn. & Cress. 674; 4 Dowl. sessed of it, were attainted of treason, & R. 172. Richardson v. Melish, 2 his son, surviving him, might claim Bing. 246.

from the first acquirer, without being (66) Dignities were originally an- affected by the attainder of his father. nexed to the possession of certain es- (2 Hale's Pl. Cr. 356). But if the fatates in land, and created by a grant of ther was in possession of the dignity those estates; or, at all events, that was at the time of such attainder, then his the most usual course. (Rex v. Knollys, corruption of blood would be fatal to 1 L. Raym. 13). And although digni- the claim of the son; and in the case ties are now become little more than of a dignity descendible to heirs genepersonal distinctions, they are still ral, the attainder for treason of any anclassed under the head of real property; cestor, through whom the claimant of and, as having relation to land, in theory such dignity must derive his title, at least, may be entailed by the crown, though the person attainted never was within the statute de donis ; or limited possessed of the dignity, will bar such in remainder, to commence after the claim. (Rex v. Purbeck, Show, P. C. 1. determination of a preceding estate tail Law of Forfeiture, 86, 87).

If two offices are incompatible, by should be a superior office. 2 T. R. 81. the acceptance of the latter the first-Cu. is relinquished and vacant, even if it

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