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prevented from forming any judgement whether the clause might operate as a grant of the right of sporting, because the deed was not set out, and no operation could be ascribed to the instrument different from that which was attributed to it by the plea.

28. Under a limited leasing power, enabling successive tenants for life to demise all or any part of the estates, hereditaments, and premises, devised by the testator, for any term not exceeding twenty-one years, at the best rent without fine, it was ruled, that a lease of a messuage, parcel of the lands devised, together with full liberty to the lessee, his executors(u), administrators, and assigns, and his and their friends, in his or their company, at seasonable times, to hunt, course, shoot, and fish over the demised premises, and also over any other of the lands whatsoever, for a term of fourteen years, paying to the lessor, or other person for the time being entitled to the immediate reversion of the premises, the rent of £200 yearly, was not a valid execution of the power, because the lease was only made of part of the premises, with a right of shooting over the whole, and as it is the land itself that gives the right of shooting, the lessor had no power to separate the land from one of its incidents.

29. A demise of lands for years made in the year 1825, excepting thereout to the lessor, his heirs and assigns, all manner of game and other royalties, and also saving and reserving unto the lessor, his heirs and assigns, liberty for him or them, or(v) such as he or they should appoint, to fish, hawk, hunt, and fowl on the demised premises; by the first branch of the reservation only authorizes game to be killed for the landlord's use, and not for the benefit of his appointee, as the word "assigns," in the first clause, only includes assignees of the estate, and not appointees of the privilege; and by the second branch of the reservation, neither the lessor nor his appointee, by force(w) of the word hunting, is authorized to shoot feathered game, nor under the words(a) "hunting and fowling" to shoot hares.

It was decided on demurrer in an action of trespass, that a party might justify(y) pursuing a fox with hounds over the land of another, if no more injury were committed than was necessary for killing the fox; but in a subsequent case(2) Lord Ellenborough directed the jury

(u) Dayrell v. Hoare, 4 P. & Dav. 114; 12 Ad. & Ell. 356, S. C.

(v) Finlay v. Curteis, Hayes, 496, on demurrer.

(w) Moore v. Ld. Plymouth, 7 Taunt. 416; 1 B. Moore, 346, S. C.

(x) Finlay v. Curteis, Hayes, 496.
(y) Gundry v. Feltham, 1 T. R. 334;

Nicholas v. Badger, 3 T. R. 259, cited Poph. 161; Latch. 119; sed contrà, 2 Ro. Abr. 558, Trespass, B. pl. 2; Gedge v. Minne, 2 Bulst. 60; i Bro. 224; Cro. Jac. 321.

(2) Earl of Essex v. Capel, Hertford assizes, before Lord Ellenborough, 1809; Selw. N. P. 1347.

to find for the plaintiff in a similar action, if they thought from the evidence that the defendant pursued the fox for his own amusement, and if they thought the good of the public was not his sole governing motive. Where, however, the dogs of a person hunting on his own ground, follow the game without his incitement(a), into another's preserve, if the jury find that the hounds escaped against the will of their owner, and that he had no intention of sporting on the preserve, a verdict should be entered in his favour.

30. It may be useful to refer to a Scottish determination on this subject, in which the law of Scotland received great consideration. In that case it was held(b), that a lease of land, of whatever length, does not confer the right of killing game on the land, or deprive the landlord of access to the farm to kill the game; but the tenant is entitled to damages if his farm be injured by the exercise of the right; and that a lease of game, or a right to kill game, constituted in the form of a lease, is merely a personal right between the grantor and grantee, and will not affect a purchaser of the land. In giving judgement, the Lord Ordinary observed, that by the law of Scotland the right of killing game, considered as a real right, is an incident of landed property. A proprietor may, and generally does possess it on his own estate, or he may possess it on the estate of another person, by virtue of a servitude, his own estate being the dominant tenement; but it never appears disjoined from the ownership of land, as a separate tenement constituted by lease; it is often exercised by delegation, but in that case is merely a personal privilege. Lord Gillies said, there may be an agreement between two persons, one a proprietor of shooting ground, conferring a right on the other to shoot on the ground, which will be a good personal obligation, but there can be no such real right. I could indeed figure a right to shoot over property, made the subject of a servitude to another property, but I know no means, by lease or otherwise, of constituting a real right in a stranger to shoot, and I think that no measure should be encouraged which would go to separate the right of shooting on the property, from the right to the property itself. Lord Balgray: no real right in game can be constituted. The feodal law was fixed before guns were invented, and does not admit of such rights as real rights. There may be personal rights binding the grantor, but a purchaser cannot be affected by them.

(a) Dimmock v. Allenby, cited 2

Marsh. 582.

(b) Pollock's case, Shaw and Dunlop's Court of Session Reports, 913, 5th June,

1828; and see Erskine's Institute of the Law of Scotland, by Macallan, 318, note 1.

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1. ACCORDING to the feodal law, if the tenant or vassal did not perform the duties or services imposed by his tenure, the lord might summon him before the court-baron, or manor court, and in default of appearance was entitled to seize(a) the feud, and retain the profits to his own use, until the demand was satisfied. This seizure of the land was in nature of distress, and appears to have been a source of great oppression, until landlords were prohibited by Statute(b) from seizing the freeholds of their tenants. The remedy then adopted to enforce the performance of services, or payment of rent, was by distress or seizure(c) of all chattels found upon the land: the right to distrain being substituted for the seizure of the feud, could only belong to the reversioner, or to such person as might have availed himself of a forfeiture of the tenant's estate for a violation of the feodal contract, and hence the right of distress always attended, and was deemed inseparably incident to the right of fealty.

By the common law, a tenant holding in fee could not have aliened(d), or transferred his tenure without the license of the lord, though he might have given part of his land to be holden of himself and his heirs in fee, and many tenants availing themselves of this privilege, disposed of so much of their lands, that a sufficiency was not

(a) Wright's Ten. 199.

52 Hen. III. c. 22; and see Barrington's observations on the Statutes, 66.

(c) Gilb. on Rents, 5.
(d) Wright's Tenures, 154.

left to answer the services due to their respective superiors. This practice, which was termed subinfeudation, was found very prejudicial to the interests of the lords paramount, or chief lords, who were thus deprived of escheats, and other feodal profits, which devolved on the mesne, or intermediate lords.

2. In order to remedy this evil, every freeholder was enabled by the Statute(e) "Quia emptores," to alien the whole or any part of his lands and tenements at his pleasure: but it was enacted, that the feoffee, or person to whom the lands were granted, should hold them of the chief lord(ƒ) of the fee, by the like services and customs as the feoffor before held the same; and as this Act did not extend to the king, or his tenants in capite, a similar privilege was conferred by subsequent (g) Statutes on tenants holding of the Crown.

Where the king has any prerogative, estate, right, title, or interest, he shall not be barred of them(h) by the general words of a Statute, and not being specially named in the Statute "Quia Emptores,” he is not bound by its provisions, and may license a subject to create(i) tenures, and to grant lands to be holden in fee of the grantor and his heirs. No inferior lord has this power, by reason of the king's interest as lord paramount, but the king and the mesne lords may join(j) in granting a license for subinfeudation to the tenant paravail.

Where lands were holden immediately or directly from the Crown, and no tenure was specified in the grant, the law implied a holding(k) in capite, or in chief, as being most beneficial to the king, and most honourable to the subject: and where lands were granted by a subject, without any express reservation of rent, or other service, if a reversion were retained, service by fealty() was implied, and the tenant was bound to take the oath of fealty, or fidelity, to his feodal superior. A

(e) 18 Edw. I. Stat. 1, c. 1; Statute of Westminster the Third, A. D. 1290; and see Barrington's observations on the Statutes, 167; 2 Instit. 500.

(f) The words "chief lord" are to be understood as meaning the next immediate lord; 2 Instit. 501.

(g) 17 Edw. II. c. 6; 1 Edw. III. stat. 2, c. 12; 34 Edw. III. c. 15; Wright's Tenures, 162–166.

(h) Magdalen College case, 11 Rep. 68, A., 74, B.; 1 Rolle's Rep. 164, S.C. (i) Abbot of Barking's case, Year Book, 10 Hen. VII. fol. 23, pl. 26; 2 Bro. Abr. Tenures, pl. 2 and 65; Litt. s. 140; Co. Litt. 98, B.; Year Book, 12 Hen. VII. 21, A., by Frowike, Argo.;

Willion v. Berkley, Plowd. 240; Wright's Tenures, 162; and see the note of the reporter to the King v. Wilson, 5 Mann. & Ry. 156.

(j) Year Book, 27 Hen. VIII. 26, pl. 5, by Fitzherbert, veniendo de Westmonast.; Fitzh. Nat. Brev. 211; 6 Bac. Abr. 487, Tenure, B.; 2 Instit. 501; Fawlkner v. Bellingham, W. Jones, 233238; Cro. Car. 215, S. C., by Jones, J.

(k) See Bishop Gibson's Preface to Spelman's works, containing an abstract of Lord Dillon's case; Anthony Lowe's case, 9 Rep. 122, B.; case of the county palatine of Wexford, Davies, 159.

(1) Co. Litt. 23, A., 143, A.

frequent and public recognition of such holding being deemed of great importance, every tenant was obliged, upon every change in the tenancy, to take, or to renew the oath of fealty, and on his neglect, or refusal, the landlord had a right to distrain all the goods and chattels on the lands, and no distress, however great in value, when taken(m) for the purpose of enforcing performance of fealty, was considered

excessive.

3. A rent-service is defined to be an annual or periodical return(n) made by a tenant, either in money, labour, or provisions, in retribution for lands holden in possession, remainder, or reversion, and subsists where lands are holden by fealty and rent, or by fealty, rent, and other services; and distress(o) may be made, of common right, for any arrear of such rent, without special reservation for that purpose; but a rent-service will not be constituted by the reservation(p) of a contingent, or penal rent, uncertain in its commencement or duration.

Prior to the Statute "Quia Emptores," a feoffment(q) in fee, or lease for ever, reserving a certain rent to the grantor and his heirs, created a rent-service. The tenant was obliged to swear fealty to the grantor, who had a right of reverter in case of escheat, and also the right of enforcing, by distress, payment of the rent, and performance of the services reserved by the grant.

If a person seised of an estate of freehold, or inheritance, grant by deed a yearly rent to be issuing out of his lands in fee(r), in tail, for life, or for years, with power to distrain in case of non-payment, a rent-charge will be created, because the lands are charged with, and made subject to a distress, by the express provision of the parties, and if the deed do not contain a clause of distress, the rent granted will be a rent-seck.

A reservation of rent upon a grant in fee, or lease for ever, made since the Statute" Quia Emptores," without license from the Crown, or legislative authority, does not constitute a rent-service; but if a clause of distress(s) be inserted in the deed of grant, a rent-charge will be created, as this reservation is considered to be equivalent to a grant of the rent out of the lands by the feoffee. The Statute, however, has only the effect of preventing the reservation of rent, or services, upon grants of land in fee, for if lands be granted in tail, or a lease be made

(m) Bevil's case, 4 Rep. 8, B.

(n) Gilb. Rents, 9.

(0) Co. Litt. 142, A.; Bac. Abr. Rent, A. 1.

(p) Yielding dem. Ponsonby v. Cavendish, MSS. App.; Doe dem. Parsley v.

Day, 2 Q. B. Rep. 147; 2 G. & Dav. 757. (q) Litt. ss. 216 and 217.

(r) 6 Bac. Abr. 6, Rent, A. 2; Burton's Comp. 352.

(s) Litt. s. 217; 6 Bac. Abr. 6, Rent, A. 2.

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