fice 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 vi. Digniof these we treated at large in the former book;" it will, there- ties. fore, be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate. chises. VII. Franchises are a seventh species. Franchise and lib- vII. Franerty are used as synonymous terms; and their definition is," 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, 50 may be held by prescription, which, as has been frequently said, presupposes a grant.51 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 can not be bestowed on another, for that would prejudice the former grant.w kinds enu To be a county palatine is a franchise vested in a number Different It is likewise a franchise for a number of persons merated. of persons. 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 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- [ 38 ] 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 county, wherein the grantee only, and his officers, are to execute all process; to have a fair " See Book i., ch. 12. tions, all offices in the gift of the crown w 2 Roll. Abr., 191. Keilw., 196. can not be presumed from such evidence. (51) See 2. You. & J., 285; 3 Burr., (50) Such franchises as can not be enjoyed without matter of record, can not 1812. be claimed by prescription; for a record Forests. Chases. Parks. Free warrens. or market, 52 with the right of taking toll, either there or at any other public places, as at bridges, wharves, 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;x53 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. 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 to the forest laws.54 But a chase differs 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 grounds. The word park, indeed, properly signifies an inclosure; but yet it is not every field or common which a gentleman 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." 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, a55 except such as possess these franchises of forest, chase, or park. Free warren is a similar franchise erected56 for pres * 2 Inst., 220. y 4 Inst., 314. 2 Co. Litt., 233. 2 Inst., 199. 11 Rep., 86. These are properly buck, doe, fox, martin, and roe; but in a common and (52) As to the connection between the right to the soil and the right to the franchise of a fair or market, and the power of removing a fair or market, see 7 Ad. & El., 95; 1 Wils., 107; 3 East, 538; 5 Ad. & El., 460. As to juries, see Peter v. Kendal, 6 B. & Cr., 703. (53) For such franchises are restrictive on the public, and if they are disturbed or evaded the grantee has a remedy (see 4 T. R., 666; 5 Mee. & W., 375; 6 Id., 234); and therefore, also, he is bound to afford the public the full benefit of his franchise. (Wiles, 510; Show., 231. See 2 Cl. & Fin., 513.) (54) But a subject may have a forest, with the privilege of forest courts and officers, by grant under the Great Seal. (Manwood, pl. 77, 88; Cro. Jac., 155.) "The king, before the Charta de Forestâ, could have made a forest wherever he 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 venary or hunting.(Co. Litt., 233.) pleased over the lands of his subjects; but after the boundaries of the district fixed upon were marked out and proclaimed by the sheriff, it was only a chase till proper officers were appointed, when it became a forest, and under the jurisdiction of the chief justice in eyre. (Manw., tit. Forest, pl. 7.) A forest is not necessarily a chase in the hands of a subject; for it may be granted by the king, subject to the justice-seat and the forest laws, as the Duke of Lancaster and Duke of Norfolk, and many other noblemen, have had forests subject to the forest laws; but if the jurisdiction is not added in the grant, it becomes a chase, and trespassers in it are punishable only by the common law." (Ib., pl. 67 et seq.; 4 Inst., 314.)-[CHRISTIAN.] (55) But see infra, p. 419. (56) A free warren may be granted b ervation or custody (which the word signifies) of beasts and [ 39 ] fowls of warren, which, being feræ naturæ, every one had a natural right to kill as he could; but upon the introduction of the forest laws, at the Norman conquest, as will be shown hereafter, these animals being looked upon as royal game and the sole property of our savage monarchs, 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.c57 This franchise is almost fallen into disregard since the new statutes 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 ancient times who have sold their estates, and reserved their free warren, or right of killing game, to themselves; by which means it comes to pass that a man and his heirs have sometimes free warren over another's ground. A free fishery, or exclusive right of fishing in a public river, is Free fisheralso a royal franchise, and is considered as such in all countries where the feodal polity has prevailed; though the making such grants, and by that means appropriating what seems to be unnatural to restrain, 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, The beasts are hares, conies, and roes; the fowls are either campestres, as partridges, rails, and quails; or sylvestres, as woodcocks and pheasants; or aquatiles, as mallards and herons.(Ibid.)* © Salk., 637. Dufres d Bro. Abr., tit. Warren, 3. at this day, though such grant is not the recent alterations of the law, infra, usual. (Cruise Dig., tit. 34, s. 4.) (57) But the owner of a free warren neither kept nor killed the game for the use of the king. See, as to the doctrine that no one can by common law justify sporting on his own grounds, and as to *Upon the forest laws I should consider Manwood higher authority than Sir Edward Coke. Manwood informs us that a forest is not å privileged place for all manner of beasts or fowls, but only for beasts of forest, chase, or warren, and no other, that is, for the hart, the hind, and the hare, which are beasts of the forest; the buck, the doe, the fox, which are beasts of the chase; the hare, the cony, the VOL. II.-D p. 419. A grant of a free warren in a manor, and a separate grant of the manor, do not make the free warren appurtenant to the manor. (Cro. El., 547; 1 Ad. & El., 654.) pheasant, and the partridge, which are 49 ies. ery. fishery. as well as the forests to be disafforested. This opening was extended by the seconds and third charters of Henry III. to those, also, that were fenced under Richard I.; so that a franchise of free fishery ought now to be, at least, as old as the reign Several fish- of Henry II.58 This differs from a several fishery, because he 40] that has a several fishery must also be (or, at least, derive his right from) the owner of the soil, which in a free fishery is Common of not requisite.59 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 afterward. 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. But to consider such a 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 distinguish 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 which 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. VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one's maintenance." In lieu of which (especially when due from ecclesiastical persons) a pension or sum of money is sometimes substituted." 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 (58) See Williams v. Wilcox, 8 Ad. soil passed, yet a grant of a & El., 314. (59) But a subject may have by prescription a several fishery in an arm of the sea. (Per Lord Kenyon, 4 T. R., 439; 1 Camp., 312.) And although, perhaps, if the terms of the grant be unknown, it will be presumed that the "several fishery," without more, does not pass the soil. (5 B. & Cr., 881.) The consequence is material, for when the grantee has the soil, he has a corporeal hereditament which will pass without deed, but a mere fishery can not be even demised for years. (Id.) 60 owner in respect of such his inheritance. To these may be added, ties. IX. Annuities, which are much of the same nature, only that IX. Annuithese arise from temporal, as the former from spiritual persons. An annuity is a thing very distinct from a rent charge, with [ 41 ] which it is frequently confounded: a rent charge being a burden imposed upon and issuing out of lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor. Therefore, if a man by deed grant to another the sum of £20 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; and yet a man may have a real estate in it, though his security is only personal.61 P Co. Litt., 144. (60) A corody, notwithstanding its personal nature, can not, any more than another incorporeal hereditament, be granted or transferred by an unsealed writing. (12 Hen. IV, 17; Finch, 162.) (61) An annuity is a sum payable by contract, at regular consecutive periods, whether of greater or less extent than a year. Thus, a payment at intervals of twenty years has been held an annuity. But a covenant with A. and his heirs to find a monk to serve a chapel every holyday, or to pay £5 for each default, was held not to be a grant of an annuity, on account of the uncertainty and irregularity of the payment. (Dyer, 24; Roll. Ab., Annuity.) An annuity is a definite sum payable on fixed days; and if the event which is to put an end to the annuity happens in the interval between any two days of payment, nothing is payable at common law for the portion of the current period which has elapsed; and this distinguishes an annuity from interest for a debt, which accrues de die in diem, notwithstanding a contract for payment at fixed periods. (1 Swanst., 349, n. ; 2 B. & AÎ., 802; Buck, 408.) As to the apportionment of annuities in certain cases at common law and by statute, vide infra, p. 43, n. (69). q Ibid., 2. out a deed. (Co. Litt., 114, b; 14 Ves., The better opinion seems to be that, though an annuity may be limited to heirs, and may therefore be an hereditament, and forfeitable for treasons (7 An annuity may be granted, as is said Rep., 35), it has none of the other propin the text, to a man and his heirs; and erties of a real hereditament. If it be whether such an annuity can properly granted to a man and his heirs in tail, it be called a real estate or not, it is so far is not within the statute de donis (infra, regarded as an incorporeal hereditament p. 113), but becomes absolute on the as to be held within the well-known birth of issue. (1 Br. C. C., 324; Ambl., rule, that an incorporeal hereditament 782; 2 Ves., sen., 170.) "If I, by my can not be granted or transferred with- deed for me and my heirs, grant an an |