ments; things personal are goods, money, and all other movables; which may attend the owner's person wherever he thinks proper to go. In treating of things real, let us consider, first, their several sorts or kinds; secondly, the tenures by which they may be holden; thirdly, the estates which may be had in them; and, fourthly, the title to them, and the manner of acquiring and losing it.

Lands, Tenements and Hereditaments.

First, with regard to their several sorts or kinds, things real are usually said to consist in lands, tenements or hereditaments. Land comprehends all things of a permanent, substantial nature; being a word of a very extensive signification, as will presently appear more at large. Tenement is a word of still greater extent, and though in its vulgar acceptation it is only applied to houses and other buildings, yet, in its original, proper and legal sense, it signifies everything that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus liberum tenementum, franktenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like; and, as lands and houses are tenements, so is an advowson a tenment; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are all of them, legally speaking, tenements. But an hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed. Thus an heirloom, or implement of furniture which by custom descends to the heir together with a house, is neither land, nor tenement, but a mere movable; yet being inheritable is comprised under the general word hereditament; and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament.

Hereditaments-Corporeal and Incorporeal.

Hereditaments then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses; such as may be seen and handled by the body; incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation. Land-Its Meaning in Law.

Corporeal hereditaments consist wholly of substantial and permanent objects; all of which may be comprehended under the

general denomination of land only. For land, says Sir Edward Coke, comprehendeth, in its legal signification, any ground, soil, or earth whatsoever; as arable meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includeth also all castles, houses, and other buildings; for they consist, saith he, of two things; land which is the foundation, and structure thereupon; so that if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism; but such is the language of the law; and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; either by calculating its capacity, as, for so many cubical yards; or by superficial measure, for twenty acres of water; or by general description, as for a pond, a water course, or rivulet; but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water. For water is a movable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein; wherefore, if a body of water runs out of my pond into another man's I have no right to reclaim it. But the land which that water covers is permanent, fixed, and immovable; and therefore in this I may have a certain substantial property; of which the law will take notice, and not of the other.

Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelum, is the maxim of the law, upwards; therefore no man may erect any building, or the like, to overhang another's land; and downwards, whatever is in a direct line, between the surface of any land and the center of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but everything under it, or over it. And therefore if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are equally sufficient to pass them; except in the instance of water; by a grant of which, nothing passes but a right of fishing; but the capital distinction is this, that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generalissimum, everything terrestrial will pass.

An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels.

In short, corporeal hereditaments are the substance which may be always seen, always handled; incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance, and may belong or not belong to it without any visible alteration therein. Their existence is merely in idea and abstracted contemplation, though their effects and profits may be frequently objects of our bodily senses. And, indeed, if we would

fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced and the thing or hereditament which produces them.

Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.

Advowsons.

I. Advowson is the right of presentation to a church, or ecclesiastical benefice. Advowson, advocatio, signifies the taking into protection; and therefore is synonymous with patronage, and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common (from whence, as was formerly mentioned, arose the division of parishes), the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron.

This instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and its appendages; but it is a right to give some other man a title to such bodily possessions.

Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only founders, and of course the only patrons, of churches, the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant; and it will pass, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words. But where the property of the advowson has been once separated from the property of the manor by legal conveyance, it is called an advowson in gross, or at large, and never can be ap- 、 pendant any more; but it is for the future annexed to the person of its owner, and not to his manor or lands.

Advowsons are also either presentative, collative, or donative; an advowson presentative is where the patron hath a right of presentation to the bishop or ordinary, and moreover to demand of him to institute his clerk, if he finds him canonically qualified; and this is the most usual advowson. An advowson collative is where the bishop and patron are one and the same person; in which case the bishop cannot present to himself; but he does, by the one act of collation, or conferring the benefice, the whole that is done in common cases, by both presentation and institution. An advowson donative is when the king, or any subject by his license, doth found a church or chapel, and ordains that it shall be merely in

the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induction.

Tithes.

II. A second species of incorporeal hereditaments is that of tithes; which are defined to be the tenth part of the increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants; the first species being usually called predial, as of corn, grass, hops, and wood; the second mixed, as of wool, milk, pigs, etc., consisting of natural products, but nurtured and preserved in part by the care of man; and of these the tenth must be paid in gross; the third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due.

The author proceeds to describe the things for which tithes are to be paid, the origin of the right of tithes, in whom the right at present subsists, and who may be discharged either totally or in part from paying them. Common.

III. Common, or right of common, appears from its very definition to be an incorporeal hereditament; being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood or the like. And hence common is chiefly of four sorts; common of pasture, of piscary, of turbary, and of estovers.

I.

Common of pasture is a right of feeding one's beasts on another's land; for in those waste grounds, which are usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the particular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in gross.

Common appendant is a right, belonging to the owners or occupiers of arable land, to put commonable beasts upon the lord's waste, and upon the lands of other persons within the same manor. Commonable beasts are either beasts of the plough, or such as manure the ground. Common appurtenant ariseth from no connection of tenure, nor from any absolute necessity; but may be annexed to lands in cther lordships, or extend to other beasts, besides such as are generally commonable; as hogs, goats, or the like, which neither plow nor manure the ground. This can only be claimed by immemorial usage and prescription, which the law esteems sufficient proof of a special grant or agreement for this purpose. Common because of vicinage, or neighbourhood, is