the tide flows) appertains primâ facie to the crown-the right of fishing to the public at large (y). But in either one or the other, there may be a particular title in some individual, by which such general or presumptive right may be controlled (z); and this may take place in a public river, by force of some royal grant or prescription entitling a private person and his heirs to the exclusive right of fishing therein: a privilege called by Blackstone a “free fishery" (a). Grants of this description can no longer be made by the crown (b); being prohibited by King John's great charter (c), and the second and third confirmations of it in the reign of his successor; but the right of conferring them was considered, (prior to these charters,) as one of the flowers of the prerogative (d); and it is from this origin that the validity of a free fishery at the present day must in every case be derived. The privilege materially differs, it will be observed, from the right of common of piscary formerly mentioned (e); which is not exclusive in its nature, nor a franchise, but referable to private rivers, and capable of being created by the grant of a subject. In (y) Ibid. c. 4; Ward v. Cresswell, Willes, 265; Mayor, &c. of Orford v. Richardson, 4 T. R. 437; 2 H. Bla. 182, S. C.; Bagott v. Orr, 2 Bos. & Pul. 472; Blundell v. Catterall, 5 B. & Ald. 268; Williams v. Wilcox, 8 Ad. & E. 333. (z) Hale, de Jure Maris, part i. c. 1, 4. (a) There are in law, the three different terms of free fishery, several fishery, and common of fishery or piscary (Smith v. Kemp, Salk. 637); and it is remarked by Blackstone (vol. ii. p. 40) that "they are very "much confounded in our law "books ;" and a doubt is expressed in Co. Litt. by Harg. 122 a, n. (7), whether Blackstone's own use of the term free-fishery is quite correct, and whether it does not apply to all streams, whether public or private. As to the term "several fishery," see Holford v. Bailey, 8 Q. B. 1000. (b) 2 Bl. Com. 39; Duke of Somerset v. Fogwell, 5 B. & Cress. 875. As to the re-grant of a former franchise of free fishery, when forfeited to the crown, see the mayor of Colchester v. Brooke, 7 Q. B. 385. (c) Cap. 47, edit. Oxon. (d) The right was also exercised by the crown, and granted out to subjects, of making weirs on our public rivers; but this was in like manner restrained by Magna Charta and subsequent statutes; see Williams v. Wilcox, 8 Ad. & E. 314. (e) Vide sup. p. 661. further illustration of the difference between them, we may add that, in a free fishery, a man has a qualified property in the fish before they are caught; in a common of piscary, he has no property till afterwards (ƒ). VI. Rents are the last species of incorporeal hereditaments that we propose to notice. [The word rent, reditus, signifies a compensation or return] yielded periodically, to a certain amount, out of the profits of some corporeal hereditament, by the tenant thereof. To obtain a clear idea of rent, it may be useful to dwell a little upon some of the points of this definition. First, then, it is yielded, that is, paid as a thing due. And therefore it is said by the antient lawyers, to lie in render, in contradistinction to those incorporeal hereditaments, (as common or the like,) which the party entitled to, is to take for himself, and which are, consequently, said to lie in prendre (g). It must also be of certain amount, or that which may be reduced to certainty, by either party; for certum est, quod certum reddi potest(h). It must besides be payable periodically; as yearly, or in every second, third or fourth year, or the like (i). Again, is is considered as payable out of the profits (k) of the land, and must consequently [not be part of the land itself; wherein it differs from an exception in a grant, which is always of part of the thing granted (1).] Thus a man cannot reserve, by way of rent, the vesture or herbage of the land demised (m). [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 by way of rent (n).] Moreover, [it must issue out of hereditaments corporeal. Therefore a rent cannot be reserved out of a common, a (ƒ) 2 Bl. Com. 40; F. N. B. 88; Smith v. Kemp, 2 Salk. 637. (g) Burton, Compend. 375. (h) Co. Litt. 142 a. (i) Ibid. 47 a. (k) Ibid. 141 b, 142. (1) Plowd. 13; 8 Rep. 71; Co. Litt. 142 a. (m) Co. Litt. 142 a. (n) Ibid.; see Doe v. Benham, 7 Q. B. 982. [franchise, or the like(o).] or the like(o).] And, lastly, the person from whom it is due must be the tenant of the land. But his tenancy may be either in possession, remainder or reversion; for a rent may be as well reserved upon the grant of a reversion or remainder, as on the conveyance of an estate in possession (p). [There are at common law, three manner of rents, rentservice, rent-charge, and rent-seck (q).] Rent service is where the rent accrues in connection with a tenure, attended (as tenure almost invariably is) by fealty or by fealty and other services (r); and this, whether the party to whom the rent is due be entitled to fealty, as having the reversion of the land out of which it issues, or as having the mere seigniory (s). Thus if A., seised in fee, make a gift of land to B. in tail,-or demise to him for life, or years, -reserving a rent; or if B. be seised in fee of a tenement holden of A. as lord of a certain manor, at a certain antient rent; such rent is, in either case, rent-service: for it is due as from a tenant owing fealty to his lord (t). To rent of this description the common law attached, as of common right,—and independently of any express provision for that purpose between the parties (u),-the power of distress(x); (0) Co. Litt. 142 a, 144 a, 47 a; Gilb. Rents, 20. The sovereign, however, by prerogative, and in some cases a subject, by statute, may have a rent issuing out of an incorporeal hereditament. (Gilb. Rents, 22.) And, in every case, the reservation of rent upon an incorporeal inheritance will be binding on the lessee, as a contract to pay so much money. (Cruise, Dig. Rents.) (p) Co. Litt. 47 a, 142 a; Bac. Ab. Rent, B. (9) Litt. s. 213. (r) Ibid.; Co. Litt. 142 a. (s) Vide sup. p. 252. (t) If a man holds as tenant at will only, though subject to a rent, yet it is not rent service, for there is (x) Lord Chief Baron Gilbert (On Rents, pp. 3, 5) remarks, that "antiently the not paying attend64 ance on the lord's courts, or not I doing the feudal service, was punished with the forfeiture of "the estate; but these feudal for"feitures were afterwards turned "into distresses, according to the "pignorary method of the civil law." And this, he adds, "may easily ac"count why the power of distrain"ing always attended the fealty; that is, the lord was entitled, in the event of the rent's falling into arrear, to enforce payment without legal process, by entering the land, and seizing the goods and chattels found thereon. The other two species of rent differ from the former, in having no connection with fealty. But more particularly-a rent-charge, is where the owner of the rent has neither seigniory nor reversion, and can consequently claim no fealty, but is entitled nevertheless, by force of an express contract, to distrain; [as where a man by deed maketh over to others his whole estate in fee simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress; viz.-that, if the rent be in arrear or behind, it shall be lawful to distrain for the same (y);] or where a man by deed grants out of the land whereof he is seised, a certain rent payable to another, with a like clause of distress (z). In either of these cases [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 (a).] A rent seck (reditus siccus) is "because the power of seizure (for "forfeiture) could only belong to "him in whose homage the tenant was, and to whom the lands must "return when the feudal donation to "the tenant was spent." See further as to distress for Rent, post, bk. v. c. I. (y) Litt. s. 217. (z) Ibid. s. 218. (a) Ibid. s. 217. By 18 & 19 Vict. c. 15, s. 12, any annuity or rent-charge granted after the passing of that Act otherwise than by marriage settlement, for one or more life or lives, or for any term of years or greater estate, determinable on one or more life or lives,-shall not affect any lands, tenements or hereditaments as to purchasers, mortgagees or creditors, unless and until a me morandum or minute thereof, such as the Act describes, shall be left with the senior master of the Court of Common Pleas at Westminster, to be by him registered in a book; which book, all persons shall be at liberty to search. But by sect. 14, the registry of annuities, or rent-charges, given by will, is not required. By 22 & 23 Vict. c. 35, s. 10, the release from a rent-charge of part of the hereditaments charged therewith shall not extinguish the whole rentcharge; but shall operate only to bar the right to recover any part of the rent-charge out of the hereditaments released, without prejudice nevertheless to the rights of all persons interested in the hereditaments remaining unreleased, and not concurring in or confirming where the owner of the rent has neither seigniory nor reversion, nor any such express power of distress as above described. Thus, in either of the cases of rent-charge we have just mentioned, if no clause of distress were inserted in the deed, the rent would be rent seck (b). We must be careful, however, to distinguish here between the two kinds of rent last above described and an annuity, which [is a yearly sum chargeable only upon the person of the grantor (c). Therefore if a man by deed grant to another the sum of 20l. per annum, without expressing out of what lands it shall issue (d), no land at all shall be charged with it, but it is a mere personal annuity,] and does not belong to the class of things real; though, (by an anomaly which has sometimes led to confusion,) a man may have an estate of inheritance in it; that is, it may be made descendible to his heirs (e), while personalty in general can devolve only to the executors or administra tors. [There are also other species of rents; which are, however, reducible to the three above enumerated. Rent of assize] are rents at which the freeholders or copyholders of a manor have held under the lord from time immemorial (f); and they [cannot be departed from or varied; those of the freeholders are frequently called chief rents (reditus capitales), and both sorts are indifferently denominated quit rents (quieti reditus), because thereby the tenant was quit and free of all other services. When these payments were re the release. Before this Act a rentcharge was in effect extinguished by a release of part of the hereditaments charged. (See Co. Litt. 147 b.) (b) Litt. ss. 217, 218. (c) Co. Litt. 144, 20 a, and n. (4), by Harg. (d) As to the cases in which a grant of this kind shall be construed as a rent-charge, see Co. Litt. 147 a. (e) Co. Litt. 2 a. According to Blackstone, (vol. ii. p. 40,) " a man "may have a real estate in it." But it seems clear that this can only be in the sense of an estate of inheritance, and that an annuity savours in no other respect of the realty; see Co. Litt. 20 a; Aubin v. Daly, 4 B. & Ald. 59. (S) 2 Inst. 19. |