the introduction of the foreft laws at the Norman conqueft, as will be fhewn hereafter, these animals being looked upon as royal game and the fole property of our favage monarchs, this franchise of free-warren was invented to protect them; by giving the grantee a fole and exclufive power of killing fuch game, fo far as his warren extended, on condition of his preventing other perfons. A man therefore that has the franchise of warren, is in reality no more than a royal gamekeeper: but no man, not even a lord of a manor, could by common law juftify sporting on another's foil, or even on his own, unless he had the liberty of free-warren. This franchise is almost fallen into disregard, fince the new statutes for preferving the game; the name being now chiefly preserved in grounds that are fet apart for breeding hares and rabbits. There are many instances of keen sportsmen in antient times, who have fold their estates, and reserved the free-warren, or right of killing game, to themselves; by which means it comes o pass that a man and his heirs have sometimes free-warren over another's ground. A free fishery, or exclufive right of fifhing in a public river, is alfo a royal franchise; and is confidered as fuch in all countries where the feodal polity has prevailed: though the making fuch grants, and by that means appropriating what feems to be unnatural to reftrain, the use of running water, was prohibited 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 forefts to be difafforested. This opening was extended, by the fecond and third charters of Henry III, to thofe also that were fenced under Richard I; fo that a franchise of free fifhery ought now to be at least as old as the reign of Henry II. This differs from a feveral fifhery; because he that has a feveral fishery must also be the owner of the foil, which in a free fishery is not requifite. It differs alfo from a common of pifcary before-mentioned, in that the free fishery is an exclu 391 Book II. five right, the common of pifcary is not fo: and therefore, in a free fishery, a man has a property in the fifh before they are caught; in a common of pifcary not till afterwards. Some indeed have confidered a free fishery not as a royal franchise, but merely as a private grant of a liberty to fish in the feveral fishery of the grantor. But the confidering fuch right as originally a flower of the prerogative, till reftrained by magna carta, and derived by royal grant (previous to the reign of Richard I.) to fuch as now claim it by prescription, may remove fome difficulties in refpect to this matter, with which our books are embaraffed. t་ } 7. VIII. CORODIES are a right of sustenance, or to receive certain allotments of victual and provifion for one's mainte nance, In lieu of which (especially when due from eccles fiaftical perfons) a pension or fum of money is fometimes substituted". And these may be reckoned another fpecies of incorporeal hereditaments; though not chargeable on, or iffuing from, any corporeal inheritance, but only charged on the person of the owner in respect of fuch his inheritance. To thefe may be added, IX. ANNUITIES, which are much of the fame nature; only that these arise from temporal, as the former from fpiritual, perfons. An annuity is a thing very distinct from a rent-charge, with which it is frequently confounded: a rent charge being a burthen impofed upon and issuing out of lands, whereas an annuity is a yearly fum chargeable only upon the perfon of the grantor. Therefore, if a man by deed grant to another the fum of 20%. per annum, without expreffing out: of what lands it fhall iffue, no land at all fhall be charged with it; but it is a mere perfonal annuity: which is of fo little account in the law, that, if granted to an eleemofynary corporation, it is not within the statutes of mortmain; and yet a man may have a real estate in it, though his fecurity is merely perfonal. k F. N. B. 88. Salk, 637. 1 2 Sid. 8. Finch. L. 162, n See book I. ch. 8. X. RENTS X. RENTS are the laft fpecies of incorporeal hereditaments. The word, rent or render, reditus, fignifies a com penfation, or return, it being in the nature of an acknowlegement given for the poffeffion of fome corporeal inheritance. It is defined to be a certain profit issuing yearly out of lands and tenements corporeal. It must be a profit; yet there is no occafion for it to be, as it ufually is, a fum of money: for spurs, capons, horses, corn, and other matters may be rendered, and frequently are rendered, by way of rent'. I 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 fervices 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 muft alfo iffue yearly; though there is no occafion for it to iffue every fucceffive year; but it may be reserved every second, third, or fourth years: yet, as it is to be produced out of the profits of lands and tenements, as a recompenfe for being permitted to hold or enjoy them, it ought to be referved yearly, because those profits do annually arife and are annually renewed. It must issue out of the thing granted, and not be part of the land or thing itself; wherein it differs from an exception in the grant, which is always of part of the thing granted. It must, laftly, iffue out of lands and tenements corporeal; that is," from fome inheritance whereunto the owner or grantee of the rent may have recourse to diftrein. Therefore a rent cannot be referved out of an advowson, a common, an office, a franchife, or the like". But a grant of fuch annuity or fumi may operate as a personal contract, and oblige the grantor to pay the money referved, or fubject him to an action of debt "; though it doth not affect the inheritance, and is no legal rent" in contemplation of law. X W THERE are at common law three manner of rents, rent service, rent-charge, and rent-feck. Rent fervice is so called t Plowd. 13: u Co. Litt. 144. w lbid. 47. because it hath fome corporal fervice incident to it, as at the leaft fealty, or the feodal oath of fidelity. For, if a tenant holds his land by fealty, and ten fhillings rent; or by the fervice of ploughing the lord's land, and five fhillings rent; these pecuniary rents, being connected with perfonal fervices, are therefore called rent-fervice. And for thefe, in case they be behind, or arrere, at the day appointed, the lord may diftrein of common right, without referving any special power of diftrefs; provided he hath in himself the reverfion, or future eftate of the lands and tenements, after the leafe or particular eftate of the leffee or grantee is expired. A rent-charge, is where the owner of the rent hath no future intereft, or reverfion expectant in the land; as where a man by deed maketh over to others his whole eftate in fee fimple, with a certain rent payable thereout, and adds to the deed a covenant or clause of diftrefs, that if the rent be arrere, or behind, it shall be lawful to diftrein for the fame. In this cafe the land is liable to the distress, not of common right, but by virtue of the clause in the deed: and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it. Rent-feck, reditus ficcus, or barren rent, is in effect nothing more than a rent reserved by deed, but without any claufe of diftrefs. THERE are alfo other fpecies of rents, which are reducible to these three. Rents of affife are the certain established rents of the freeholders and ancient copyholders of a manor, which cannot be departed from or varied. Thofe of the freeholders are frequently called chief rents, reditus capitales ; and both forts are indifferently denominated quit rents, quieti reditus; because thereby the tenant goes quit and free of all other services. When these payments were reserved in silver or white money, they were antiently called white-rents, or blanch-farms, reditus albic; in contradiftinction to rents referved in work, grain, &c. which were called reditus nigri, y Co. Litt. 142. z Litt. §.215. a Co. Litt. 143. b 2 Inft. 19. e In Scotland this kind of fmall payment is called blanch-holding, or reditus albae firmae. or or black mailed. Rack-rent is only a rent of the full value of the tenement or near it. A fee-farm rent is a rent-charge iffuing out of an eftate in fee; of at least one fourth of the value of the lands, at time of its refervation: for a grant of lands, referving fo confiderable a rent, is indeed only letting lands to farm in fee fimple instead of the ufual methods for life or years. THESE are the general divifions of rent; but the difference between them (in respect to the remedy for recovering them) is now totally abolished; and all perfons may have the like remedy by distress for rents-feck, rents of affife, and chiefrents, as in case of rents reserved upon lease f. RENT is regularly due and payable upon the land from whence it iffues, if no particular place is mentioned in the reservation : but, in cafe of the king, the payment must be either to his officers at the exchequer, or to his receiver in the country. And, ftrictly, the rent is demandable and payable before the time of sunset of the day whereon it is reserved though some have thought it not absolutely due till midnight. WITH regard to the original of rents, fomething will be faid in the next chapter: and, as to diftreffes and other remedies for their recovery, the doctrine relating thereto, and the feveral proceedings thereon, these belong properly to the third part of our commentaries, which will treat of civil injuries, and the means whereby they are redreffed. |