time were directed to be laid open. This opening was extended by the second and third charters of Henry III. to those also which were fenced under Richard I., so that a franchise of free fishery ought to be as old as the reign of Henry II. This differs from a several fishery, because he that has a several fishery must also be (or at least derive his right from) the owner of the soil, which in a free fishery is not requisite. It differs from a common of piscary, in that the free fishery is an exclusive right; the common of piscary is not so; and therefore, in a free fishery, a person has a property in the fish before they are caught; in a common of piscary, not until afterwards. Some, indeed, have considered a free fishery, not as a royal franchise, but merely as a private grant of a liberty to fish in the several fishery of the grantor. But the considering such right as originally a flower of the prerogative, till restrained by Magna Charta, and derived by royal grant, previously to the reign of Richard I., to such as now claim it by prescription, and to distinguish it, as we have done, from a several and a common of fishery, may remove some difficulties, in respect to this matter, with which our books are embarrassed." On this passage Mr. Hargrave made the following remark (s): "Both parts of this description of a free fishery seem disputable. With regard to the first part, although 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 although in other countries it may be so considered, yet, from the language of our books, it seems as if, in our law, practice had extended this kind of fishery to all streams, whether private or public: neither the register nor other book professing any discrimination. Reg. 95, b. F. N. B. 88, G.; Fitz. Ábr. Ass. 422; 17 Edw. IV. 6, b. 7. a. ; 7 Hen. VII. 13, b. With respect to the 2nd part, it is true, that in Smith v. Kemp, 2 Salk. 637; Carth. 285, S. C., the court held free fishery to import an exclusive right equally with several fishery, chiefly relying on the writ in the Register, 95, b. and the 46 Edw. III. il, a. But then this was only the opinion of two judges (t) against one (u), 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 dissenting judge was not wholly unwarranted in the latter part of his assertion, appears from two determinations a little before the case in question, viz. Upton v. Dawkin, 3 Mod. 97, where judgment was arrested in trespass for breaking and entering a free fishery; because the declaration alleged the fish taken to be the fish of the plaintiff; and Peake v. Tucker, cited in margin, Carth. 286, where judgment was arrested on the same ground." After the preceding remarks were published, Mr. J. Blackstone, with that candour and liberality

(s) Hargrave's Co. Litt. 122, a. n. 7. (t) Holt, C. J., Dolben, J.

(u) Eyre, J.

which are the inseparable companions of true learning, added the following observation, in a subsequent edition of his Commentaries : "It must be acknowledged, that the right and distinctions of the three species of fishery are very much confounded in our law books; and there are not wanting respectable authorities (see them well digested in Hargrave's notes on Co. Litt. 122 (23),) which maintain that a several fishery may exist distinct from the property of the soil, and that a free fishery implies no exclusive right, but is synonymous with common of piscary." Whatever be the nature of free fishery, whether it be, as Mr. J. Blackstone supposes, an exclusive right, or as Mr. Hargrave seems to think, only the same with common of fishery; since the case of Smith v. Kemp, before mentioned, it is too late now to contend, that an action of trespass vi et armis will not lie for an injury to it (2). But it may admit of a question, whether the declaration ought to state the fish taken to be the fish of the plaintiff. It seems, that such allegation ought to be made.

Common of Fishery.

A COMMON of fishery is a right of fishing in common with other persons in a stream or river, the soil whereof belongs to a third person. This does not differ in any respect from any other right of common (x), and trespass will not lie for an injury to it. A person having a common of fishery in another's land, cannot cut (y) the grass growing on the bank. Under ancient deeds recognizing a right in the owner of an estate to have a weir across a river for taking fish (z), if it appear that such weir was heretofore made of brushwood, through which the fish might escape into the upper part of the river, he cannot convert it into a stone weir, whereby the possibility of escape is debarred, except in times of extraordinary flood. Weirs erected in public rivers before the time of Edw. I., although an obstruction to navigation, are legalized by subsequent acts of the legislature (a). The right of the public to navigate a public river is paramount to any right of property in the crown, which never had the power to grant a weir so as to obstruct the public navigation; and if a weir, which was legally granted in such a river caused obstruction at any subsequent time, it became a nuisance (b).

(x) Salk. 637.

(y) 13 Hen. VIII. p. 15, b.

(2) Weld v. Hornby, 7 East, 195.

(a) Williams v. Wilcox, 3 Nev. & P. 606. (b) S. c.

(2) It should be remarked, however, that the declaration in Smith v. Kemp was for breaking and entering the close of the plaintiff, and fishing in the free fishery of the plaintiff in the said close. See Carthew's Rep. p. 285.

CHAPTER XXII.

FRAUDS, STATUTE OF.

Stat. 29 Car. II. c. 3, entitled, An Act for Prevention of Frauds and Perjuries.

I. Introduction.-The first, second, and third Sections, relating to parol Demises, Assignments and Surrenders, p. 833. II. The fourth and seventeenth Sections, relating to Agreements, p. 838; On the Effect of Parol Evidence of a Variation or Waiver of a written Agreement, p. 867.

III. The fifth and sixth Sections, relating to the Execution and Revocation of Wills, p. 870; and the Stat. 1 Vict. c. 26, for the Amendment of the Laws with respect to Wills, p. 889.

I. Introduction.-The first, second, and third Sections, relating to parol Demises, Assignments, and Surrenders.

INTRODUCTION.-This statute, the wise provisions of which have been so often and so justly commended (1), originated with Lord Nottingham, who probably was assisted by Sir Matthew Hale, Sir F. North, and Sir Leoline Jenkins, an eminent civilian (a). Sir M. Hale, however, died a few months before the act passed into a

(a) See Ash v. Abdy, 3 Swanst. 664; Guildford's Life, p. 109. Gilb. Eq. R. 171, and Lord Keeper

(1) Lord Nottingham used to say of this statute, that every line of it was worth a subsidy. Lord Keeper Guildford's Life by R. North, p. 109. See also Chaplin v. Rogers, 1 East, 194, where Lord Kenyon, C. J., said, "It is of great consequence to preserve unimpaired the several provisions of the statute of frauds, which is one of the wisest laws in our statute book."

law (2); and this circumstance may possibly account for the inaccuracies which have been discovered in the composition (b). To detail all the clauses of this statute, and to notice the construction which they have received in a variety of decisions, would far exceed the limits prescribed to this Abridgment. The object of the present chapter will be merely to select such of the provisions of the statute of frauds as will fall within the scope of this work, and to subjoin, in a regular series, the cases which have arisen, and the

decisions thereon.

1st Section. By this statute, for prevention of many fraudulent practices, which are commonly endeavoured to be upheld by perjury and subornation of perjury, it is enacted, that "All leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only.

2nd Section." Except all leases, not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two third parts, at the least, of the full improved value of the thing demised."

Collecting the meaning of the first section (c), by aid derived from the language and terms of the second, and the exception therein contained, I think, that the leases, &c. meant to be vacated by the first section, must be understood as leases of the like kind with those in the second section, but which conveyed a larger interest to the party than for a term of three years, and such also as were made under a rent reserved thereupon. Hence, where the plaintiff (d) agreed by parol, with the defendant, for the purchase of a standing crop of mowing grass, then growing in a close of the defendant's, for a certain sum; it was holden, that the agreement was not a lease, estate, interest of freehold, or term of years, "or

(b) See Doug. 244, n.

(c) Per Ellenborough, C. J., in Crosby

v. Wadsworth, 6 East, 602.
(d) S. C.

(2) Sir M. Hale died on the 25th of December, 1676. The parliament met on the 15th February following, and this statute received the royal assent on the 16th April, 1677. From the circumstance of this statute not having passed until after the death of Sir M. Hale, Lord Mansfield inferred, that it could not have been drawn by him; more especially as the bill was introduced in the usual manner, and not upon any reference to the judges. See Wyndham v. Chetwynd, 1 Burr. 418.

an uncertain interest of, in, to, or out of lands created by parol," within the meaning of the first section, so as to be void on the ground of not having been in writing. A lease by parol for a year and a half, to commence after the expiration of a lease which wants a year of expiring, is good; for it does not exceed three years from the making. Ryley v. Hicks, M. 2 Geo. II. per Raym., Bull. N. P. 173; 1 Str. 651, S. C., but probably from a different note. But a parol lease for three years, to commence from a future day, is void. Baker d. Nelson v. Reynolds, B. R. E. 1785, from Mr. Balguy's note, Serjt. Hill's MSS. vol. 21, p. 167. In Inman v. Stamp, B. R. Trin. 55 Geo. III. Dampier, J., said, the practice had been with the foregoing case of Ryley v. Hicks, although he rather inclined to think that the second section of this statute, taken with sect. 4, was confined to leases executed by possession, on which two thirds of the improved rent were reserved. This opinion of Dampier, J., was discussed in Edge v. Strafford, 1 Tyrw. 295; 1 Cr. & Jerv. 391, S. C., (recognizing Inman v. Stamp, 1 Stark. N. P. C. 12,) in which it was holden, that a verbal agreement to take ready furnished lodgings "for two or three years," inasmuch as it did not exceed three years, was valid as a lease; and whatever remedy could be had upon it, in the character of a lease, might be resorted to; but being a contract for an interest in land, and consequently falling within the 4th section, which requires a note in writing, no action would be supported for not entering on or occupying the demised premises. A parol demise (e), valid under the 2nd section, may contain the same special stipulations as a regular lease, and such stipulations may be proved by parol. In an action for the breach of an agreement, whereby the defendant agreed to take of the plaintiff certain premises for fifteen years (f), it appeared, by the evidence of an attorney, that he had prepared a draft of a lease, which he had sent to an attorney on the part of the defendant for perusal, who made some alterations in it, and returned it; that soon after, the defendant, being unable to perform the agreement, applied to the plaintiff to cancel it; to which the plaintiff did not object, upon being indemnified against the expense which he had incurred; but before he would try to let it again, he required the defendant to relinquish the agreement by writing, whereupon the defendant wrote on the draft of the lease as follows: "I hereby request Mr. Shippey to endeavour to let the premises to some other person, as it will be inconvenient to me to perform my agreement for them, and for so doing, this shall be a sufficient authority. I. Derrison." The defendant having refused to make any compensation, this action was brought. It was admitted, that at the time when the agreement for the lease was entered into, it was not reduced into writing, nor was any

(e) Lord Bolton v. Tomlin, 5 A. & E. 856.

(f) Shippey v. Derrison, 5 Esp. N. P. C. 190.