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Inft. 122 a.
: $71. Mr. Hargrave in his notes on the First Infti. tute has observed, that both parts of this description of a free fishery seem disputable, and says, that though for the sake of distinction it might be more convenient to appropriate free fishery to the franchise of fishing in public rivers, by derivation from the crown; and though in other countries it may be so considered, yet from the language of our books it seems as if our law practice had extended this kind of fishery to all streams, whether private or public; neither the re
gister. nor other books professing any discrimination. Smith v.
That in one case the court held free fishery to import Kemp,
an exclusive right, equally with several piscary, chiefly 2 Salk. 637. Carth. 285. relying on the writs in The Register 95 b. But this
was only the opinion of two judges against one, who strenuously insisted that the word libera, ex vi termini, implied common, and that many judgments and precedents were founded on Lord Coke's so construing it.
That the difsenting judge was not wholly unwarranted Upton v.
in the latter part of his affertion appears from two deDawkins,
terminations, a little before the case in queition. To Mod. Peake v.
these may be added the three cases cited by Lord Coke Tucker, Carth. 286. as of his own time, and there are passages in other Cro.Car.554. books which favour his distinction.
Of the Title
S 72. With respect to the manner, in which a title to Franchises.
may be made to franchises, it is laid down by Lord 1 Inst. 114 a. Coke, that, “ as to such franchises and liberties as & b.
cannot be feised as forfeited, before the cause of « forfeiture appear of record, no man can make a " title-by prescription; because that prescription being “ but an usage in pais, it cannot extend to such
things as cannot be feised nor had, without matter “ of record : as, to the goods and chattels of
traitors, felons, felons of themselves, fugitives, of “ those that be put in exigent, deodands, conusance " of pleas, to make a corporation, to have a fanc
tuary, to make a coroner, &c. to make conser“ vators of the peace, &c.
“ But, to treasure-trove, waifes, estraies, wrecke “ of sea, to hold pleas, courts of leets, hundreds, “ &c. infange thiefe, outfange thiefe, to have a
parke, warren, royall fishes, as whales, sturgions, « &c. fayres, markets, franke-foldage, the keeping of as a gaole, tolle, a corporation by prescription, and the « like, a man may make a title by usage, and
pre“ fcription onely, without any matter of record.” And, in his report of the case of the Abbot of 9 Rep. 27 b. Strata Marcella, he says that every franchise, liberty, or privilege, is either derived from a charter, and cannot be claimed by prescription, as bona et catalla felonum, &c.; or in prescription, and usage in pais without the help of any charter; as waifs, estrays, &c., Of franchises which are derived from a charter, they are either before time of memory or within time of memory. If they were granted before time of me- . mory, as many of the charters to abbots, &c. are ; they are granted, either by special words, or by general, old, obscure, ambiguous, and obsolete words, and be fuch grants of franchises, special or general, certain or obscure : yet, forasmuch as they are made before time of memory, and so of themselves are not any record pleadable, they ought to have the aid and
support of some other matter of record within time of memory; as, allowance before justices in eyre, or before the justices of the king's bench, which is more than an eyre, either in case before the justices of the common law, or before the barons of the exchequer, or by force of a confirmation, by a charter of record, of some king within time of memory; and shall not be allowed, but for such part of the grant which has been allowed and confirmed, although it be all in one and the same patent. But usage only, which is but matter of fact, will not support a record, before time of memory, in such case. And, when such ancient grant is general, obscure, or ambiguous, it shall not now be interpreted as a charter made at this day, but as the law was taken at the time when it was made, and according to the ancient allowance or record. But, if the charters were granted within time of memory, then they are pleadable without fhewing any alowance or confirmation.
$ 73. Of franchises, which may be pleaded by prescription, as wreck, waif, estray, &c. as they may be originally claimed by usage, which is a matter in pais; fo ufage may support them, without the aid of any record, either of creation, allowance, or confir, mation,
S 74. Franchises which are entire, such as to have
goods of felons, outlaws, &c. or waifs, and estrays, Mountjoy v. cannot be divided : and therefore, if they descend to Huntingdon, Godb. R. 17. two coparceners, no partition can be made of them.
$ 75. Franchises may be destroyed by a re-union How Franwith the crown; by surrender of the person entitled
chises may be
destroyed. to them; or by forfeiture in consequence of a breach of the trust, upon which they were granted
$ 76. It was laid down in the case of the Abbot of Re-union with
the Crown. Strata Marcella ; that, when the king grants any privileges, liberties, or franchises in his own hands, as parcel of the flowers of his crown, such as bona et catalla felonum, &c. within such poffeffions, there, if they come again to the king, they are merged in the crown; and he has them again, jure corona. And, if they were before appendant, the appendancy is extinct; and the king becomes seised of them jure corona, But, when franchises are erected and created by the king de novo ; there, by the accession of them again, they are not merged : as, if a fair, market, park, warren, &c. are appendant to manors, or in gross; and afterwards they come back to the king, they remain as they were before, in effe, not merged in the crown: for they were, at first, created and newly erected by the king, and were not in effe before, and time and usage has made them appendant.
S 77. Lord Coke says, if A. be feised of a manor, 1 Inft. 121 6. whereunto the franchise of waif and estray and such like are appendant, and the king purchaseth the manor with the appurtenances, now are the royal franchises re-united to the crown, and not appendant to the manor. But, if he grant the manor in as large and ample manner as A. had, &c. it is said, that the
franchises shall be appendant (or rather appurtenant) to the manor.
$ 78. Franchises may be destroyed by a surrender to the crown; and there are several instances of corporations surrendering their charters.
12 Mod. R. 271.
S 79. Where the object of a franchise is perverted, and there is either a misuser, or an abuser of it, the franchise is forfeited and loft. And it is said by Lord Chief Justice Holt in a modern case, that all franchises are granted, on condition that they shall be duly executed, according to the grant: and, if the grantee of such franchises neglect to perform the terms, the patents may be repealed by scire facias.
Bro. Ab. Tit. S 80. Non-user is also a cause of forfeiture. And Fran. pl. 10. therefore if a vill be incorporated by the king before
time of memory, and the franchise never was used within time of memory, the franchise is loft.
S 81. The franchise of holding a court leet will be forfeited, not only by acts of gross injustice, but also by bare omissions and neglects; especially if often repeated, and without excufe.
S 82. George Totterfall claimed, at the justice-seat of the forest of Windsor, a court leet within his manor of Finchamstead. The Attorney General defired, that it might be inquired, ist, If he had used it. 2d, If he had an able steward to discharge the office; for the want of that was also a cause of seisure. 3d, if he