1 Inft. 122 a. n. 7. § 71. Mr. Hargrave in his notes on the First Inftitute has obferved, that both parts of this defcription of a free fishery seem difputable, and says, that though for the fake of distinction it might be more convenient to appropriate free fifhery to the franchise of fishing in public rivers, by derivation from the crown; and though in other countries it may be fo confidered, yet from the language of our books it feems as if our law practice had extended this kind of fifhery to all streams, whether private or public; neither the regifter nor other books profeffing any difcrimination. That in one case the court held free fishery to import an exclufive right, equally with feveral piscary, chiefly relying on the writs in The Regifter 95 b. But this was only the opinion of two judges against one, who ftrenuoufly infifted that the word libera, ex vi termini, implied common, and that many judgments and precedents were founded on Lord Coke's fo conftruing it. That the diffenting judge was not wholly unwarranted in the latter part of his affertion appears from two determinations, a little before the cafe in queition. To these may be added the three cafes cited by Lord Coke as of his own time, and there are paffages in other Carth. 286. Cro.Car.554. books which favour his diftinction. Smith v. Upton v. Of the Title to Franchises. & b. § 72. With refpect to the manner, in which a title may be made to franchifes, it is laid down by Lord 1 Inft. 114 a. Coke, that, "as to fuch franchises and liberties as "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 ufage in pais, it cannot extend to fuch "things as cannot be feifed nor had, without matter "of record: as, to the goods and chattels of "traitors, felons, felons of themselves, fugitives, of "thofe that be put in exigent, deodands, conufance "of pleas, to make a corporation, to have a fanctuary, to make a coroner, &c. to make confer"vators of the peace, &c. "But, to treasure-trove, waifes, eftraies, wrecke "of fea, to hold pleas, courts of leets, hundreds, "&c. infange thiefe, outfange thiefe, to have a "parke, warren, royall fishes, as whales, fturgions, "&c. fayres, markets, franke-foldage, the keeping of 66 a gaole, tolle, a corporation by prescription, and the ❝ like, a man may make a title by ufage, and pre 66 fcription onely, without any matter of record." And, in his report of the cafe of the Abbot of 9 Rep. 27 b. Strata Marcella, he fays that every franchife, 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 ufage in pais without the help of any charter; as waifs, estrays, &e. 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 memory, as many of the charters to abbots, &c. are; they are granted, either by special words, or by general, old, obfcure, ambiguous, and obfolete words, and be fuch grants of franchises, special or general, certain or obfcure: yet, forafmuch as they are made before time of memory, and fo of themfelves are not any record pleadable, they ought to have the aid and support support of fome other matter of record within time of memory; as, allowance before juftices in eyre, or before the justices of the king's bench, which is more than an eyre, either in cafe 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 fome king within time of memory; and fhall not be allowed, but for fuch part of the grant which has been allowed and confirmed, although it be all in one and the fame patent. But ufage only, which is but matter of fact, will not fupport a record, before time of memory, in fuch cafe. And, when fuch ancient grant is general, obfcure, or ambiguous, it fhall 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 ufage, which is a matter in pais; fo ufage may fupport them, without the aid of any record, either of creation, allowance, or confir mation. 5 74. Franchifes which are entire, fuch as to have goods of felons, outlaws, &c. or waifs, and eftrays, Mountjoy v. cannot be divided: and therefore, if they defcend to Huntingdon, Godb. R. 17. two coparceners, no partition can be made of them. $75. Franchifes $75. Franchises may be deftroyed by a re-union How Franwith the crown; by furrender of the perfon entitled to them; or by forfeiture in confequence of a breach of the trust, upon which they were granted chifes may be destroyed. the Crown. § 76. It was laid down in the cafe of the Abbot of Re-union with Strata Marcella; that, when the king grants any privileges, liberties, or franchifes in his own hands, as parcel of the flowers of his crown, fuch as bona et catalla felonum, &c. within fuch 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 feised of them jure corona, But, when franchises are erected and created by the king de novo; there, by the acceffion of them again, they are not merged: as, if a fair, market, park, warren, &c. are appendant to manors, or in grofs; 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 firft, created and newly erected by the king, and were not in effe before, and time and ufage has made them appendant. § 77. Lord Coke says, if A. be seised of a manor, 1 Inft. 121 b. whereunto the franchise of waif and eftray and fuch 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 faid, that the franchises Surrender. Forfeiture. 12 Mod. R. 271. Bro. Ab. Tit. franchises fhall be appendant (or rather appurtenant) to the manor. $ 78. Franchises may be deftroyed by a furrender to the crown; and there are feveral inftances of corporations furrendering their charters. $ 79. Where the object of a franchise is perverted, and there is either a misuser, or an abufer of it, the franchise is forfeited and loft. And it is faid by Lord Chief Justice Holt in a modern cafe, that all franchises are granted, on condition that they shall be duly executed, according to the grant: and, if the grantee of fuch franchises neglect to perform the terms, the patents may be repealed by fcire facias. § 8a. Non-ufer is also a caufe 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. 2 Hawk. P. C. c. 11. 1.5. Totterfall's W. Jones, 581. The franchife of holding a court leet will be forfeited, not only by acts, of grofs injustice, but also by bare omiffions and neglects; especially if often repeated, and without excufe. § 82. George Totterfall claimed, at the juftice-feat of the forest of Windsor, a court leet within his manor of Finchamftead. The Attorney General defired, that it might be inquired, 1ft, If he had ufed it. 2d, If he had an able steward to discharge the office; for the want of that was alfo a caufe of feifure. 3d, if he had |