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But as a toll is a matter of private benefit to the lord, it is not necessarily incident to a fair or market, as was adjudged in the case of Northampton (g), wherein it was resolved that if the toll granted with a fair or market be unreasonable, the grant of the toll is void, and the fair or market shall be accounted a free fair or market:and the exaction of an outrageous toll would intitle the king to seize the franchise into his own hands (h).

In the case of Brett v. Beales (i) Lord Tenterden referred to Truman v. Walgham (k) and other authorities, establishing that one may have toll-traverse by prescription, so also toll-thorough for some reasonable cause to be shown, as to repair a way, &c.; but the judgment of the court in the principal case was, that the repair by the corporation of Cambridge of certain bridges over the Cam, and some of the streets, was not a sufficient consideration to support a claim of toll-thorough in all parts of the town.

It has been decided that although every person has a right to go into a public market to buy and sell without paying any toll, if none be due by prescription, yet the owner is intitled to Stallage and Piccage, that is, to a compensation for placing a stall, and for any breaking up of the ground; and the remedy for this is trespass (7). These franchises may be forfeited by non-user (m), which would

(g) M. 39 & 40 Eliz. cor. reg.; 2 Inst. 220; S. C. (Heddy v. Wheelhouse), Cro. Eliz. 558. And see the Mayor, &c. of Northampton v. Ward, 2 Str. 1239; S. C. 1 Wils. 115; Daventry case, (Holloway v. Smith,) 2 Str. 1171; Lowden v. Hieron, 1 Holt, N. P. 547; 6 East, 438; Com. Dig. Market, (F 1 ;) 7 Barn. & Cress. 50, in Mosley & Walker.

In a late case the terms of grant of a fair in the charter were cum omnibus liberis consuetudinibus, &c. ad feriam pertinentibus; and the Court of Queen's Bench held, that the judge improperly directed the jury that if the charter were one simply of grant, those words might signify tolls; semb. aliter, if the charter were one of confirmation and supported by immemorial usage; Earl of Egremont v. Saul, 6 Adol. & Ell. 924.

(h) 2 Inst. 219; 1 Wils. 114.

(i) 10 Barn. & Cress. 508; S. C. 1 Moody & Malk. 416.

(k) 2 Wils. 296. A special consideration need not be shown to support a claim to toll-traverse; Rickards v. Bennett, 1

Barn. & Cress. 223; 2 Dow. & Ry. 389. See as to the evidence requisite to support toll-traverse, Vines v. Reading Corporation, 1 You. & Jerv. 4; 4 Bing. 8. Persons interested in the result may, from necessity, be competent witnesses in an action for toll-traverse; Lancum v. Lovell, 9 Bing. 465. And see as to the distinction between toll traverse and toll thorough, Lord Pelham v. Pickersgill, 1 T. R. 660; Lord Falmouth v. George, 5 Bing. 286.

(1) The Mayor, &c. of Northampton r. Ward, ubi sup. And see Mo. 474; 1 Barn. & Ald. 71, in Rex v. Cotterill. A table placed in an open market is considered as a stall; The Mayor, &c. of Norwich v. Swan, 2 Sir W. Bl. 1116.

Both stallage and piccage are derived from the right to the soil. See as to both, Com. Dig. Market (F 2.); 2 Roll. Abr. 123; 15 Vin. 244, 245.

And the party intitled to stallage may waive the tort and bring assumpsit; Mayor, &c. of Newport v. Saunders, 3 Barr. & Adol. 411.

(m) Leicester Forest case, Cro.Jac. 155.

naturally induce the presumption of a surrender of them to the crown (n), or by mis-user; so that should the grantee neglect to perform the terms prescribed by the patent, it might be repealed by writ of scire facias (o).

FREE CHASE OR PARK (p). (Free Warren, Free Fishery, &c. (q) ).— Although these subjects are in some degree connected with the preceding considerations on manorial franchises, the author does not feel that they are of a nature to call for any lengthened commentary in the present treatise.

The reader, however, is reminded, that Free Chases or Parks were tracts of land granted to a subject under one or other of those names, or grounds converted by the owner into chases or parks under a license from the crown, and were considered as smaller forests; but that they were not subject to the forest laws, the grantee having no power to appoint officers of the forest nor to hold courts (r) :—it is also to be recollected that these franchises can only be claimed by grant or by prescription (s).

And the author is induced to avail himself of this opportunity of referring the student to Lord Coke's 4 Inst. p. 289 et seq., and to Mr. Justice Blackstone's Commentaries, vol. 2, c. 27, for a clear and interesting exposition of the forest laws as they existed in the Saxon æra, and as new modelled upon the Norman conquest; and the more so as it will be seen by the legal authorities adverted to, that the arbitrary and oppressive character of the forest laws was maintained by the establishment of several courts (t) imitative of those ordained (n) Br. Franchise, 10, 26. (0) Ib. 14, 22; 12 Mod. 271.

(p) These royalties are all specified in the 82nd clause of the 4 & 5 Vict. c. 35, among the manorial rights excluded from the operation of the act, unless expressly commuted.

(q) A park consists of vert, venison and inclosure, and a determination in either of these requisites amounts to a disparkment; Sir Charles Howard's case, Cro. Car. 60.

(r) 4 Inst. 314. But it appears that royal forests were sometimes granted by the crown to a subject, with express authority for the administration of justice there; Leicester Forest case, sup.

(s) See Co. Lit. 114 b; 11 Co. 87 b. Lord Coke (4 Inst. 318) says, "And it is to be observed that a man may have a free chase as belonging to his manor in his own woods, as well as a warren or park

in his own grounds; for the chase, warren and park are collateral inheritances, and not issuing out of the soil, as the common doth; and therefore if a man hath a chase in other men's grounds, and after purchase the grounds, the chase remaineth."

As to commonable rights and other like privileges in chases or parks, (and which may also exist by prescription in forests,) see 4 Inst. 298, 299, &c.

(1) The courts of the forest were:1. The Woodmote Court, or Court of Attachments, kept before the verderors every forty days for the presentment and inrolment only of attachments de viridi et renatione. 2. The Court of Survey or lawing of dogs, held every third year. 3. The Swainmote Court held thrice in the year by the steward (who acted ministerially only) before the verderors, (there being most commonly four in each forest,) as

by our Saxon ancestors for the more substantial and legitimate objects of maintaining the good order of society, and the relative rights of its component members, and of which the author proposes to take particular notice in the introductory part of the next and concluding chapter (u).

FREE WARREN (x).-The franchise of free warren is to be claimed only by grant from the crown, or by prescription which supposes such a grant (y); and the effect of it is, to vest in the grantee a property in such wild animals or inferior species of game as are deemed the beasts and fowls of warren (z).

If a person having a free warren alien the lands, the right of warren is extinct, nothing being reserved, and the land only being granted; but a reservation of the warren would be good (a).

judges of the court; and at this court the attachments of the foresters were presented, and the freeholders within the forest were to appear and make inquests and juries; but the court did not follow up its conviction by judgment; and 4. The Court of the Justice Seat, holden before the chief justice of the forest, called in the books justice in eyre, and which could not be kept oftener than every third year, and only on forty days' summons, one writ of summons being directed to the sheriff of the county. And at the sessions of this justice in eyre, he was to proceed on the presentments made at the Swainmote Courts before a jury. It should seem that a presentment or indictment of this court previously found in the Swainmote was not traversable, but that an indictment in the Court of the Justice Seat not found in the Swainmote might be traversed, it having been presented but by one jury: 4 Inst. 291, cites 8 Ed. 3; Itinere Pickering, 147 a; 21 Ed. 3, 48. See further as to these courts, Com. Dig. Chase (R).

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laws greatly relaxed, and that by many subsequent statutes and long disuser "this prerogative is now become no longer a grievance to the subject."

(x) Ante, p. 660, n. (p).

(y) 11 Co. 87 b; Co. Lit. 114b; Br. Warren, pl. 1, cites 3 Hen. 6, 12; Manw. Warren. Forrest. pl. 43. And in trespass against the gamekeeper of the lord of the manor, it lies upon the defendant to prove a royalty in justification of the entry upon the plaintiff's land, by showing a grant of a free warren from the crown; Pickering v. Noyes, 4 Barn. & Cress. 639. And the right will not pass de novo merely by the general words "free warren," &c., Carr v. Smith, cited 2 Cr. & Jerv. (Ex.) 294, in Att. Gen. v. Parsons.

(z) See F. N. B. 86, 87, and the notes. Beasts and fowls of warren are hares and rabbits, pheasants and partridges; Manw. 95. In Co. Lit. (233 a), a roe is also named as a beast of warren, and quail, rail, woodcock, herne, mallard, &c. as fowls of warren. Grouse are not birds of warren; The Duke of Devonshire v. Lodge, 7 Barn. & Cress. 36. Beasts of park or chase are buck, doe, fox, martron and roe; Manw. 94; Co. Lit. 233 a; 8 Co. 138 b. Beasts of forest or venary are hart, hind, hare, boar and wolf; Manw. 91; 8 Co. 138 b.

(a) Br. Warren, pl. 3, cites 35 Hen.

6, 55.

And if a person having a manor in which there is a free warren should enfeoff another of the manor, with the appurtenances, the warren would not pass (b), for a warren is not necessarily appurtenant to a manor, though it may be so by prescription (c).

The franchise of free warren implies a sole and exclusive (d) power of killing game within the ambit of the grant, on condition of preventing others from doing so; and therefore, as Sir William Blackstone says (e), " a man that has the franchise of warren is in reality no more than a royal game-keeper."

Whether or not a person may have a property ratione soli in such animals fera naturæ as are denominated game, or how far such possible right may be affected by any manorial privileges in lords of manors emanating from the king, and founded on principles of feudal tenure, does not appear to be a question so immediately connected with the subject of the present treatise, as to call for particular animadversion in this place (f); but assuming that a right of property

(b) Br. Warren, pl. 7. And see ib. pl. 5, citing 14 Hen. 4, 6; Vin. Ab. Warren, pl. 3, marg. And see as to the effect of the words, "and to have free warren in all demesne lands in the manor, &c.," Att. Gen. v. Parsons, 2 Cr. & Jer. (Ex.) 279. In that case (p. 308) Lord Lyndhurst, C. B., on delivering the judgment of the court, said, "though the word ‘demesne' may, in some cases, be applied to any fee simple lands a man holds, yet it is more correct and usual to apply it to the lands of a manor, which the lord of that manor either actually has, or potentially may have, in propriis manibus.”

(c) Bowlston v. Hardy, Cro. Eliz. 547; S. C. 5 Co. 104 a; Morris v. Dimes, 3 Nev. & Mann. 671; S. C. 1 Adol. & Ell. 654. By prescription a person may have a warren in a forest, but there must be an allowance of it in eyre, that is in the court of the forest; Sir Richard Harrison's case, W. Jones, 280.

(d) But a free warren is not necessarily an exclusive right, for in one case a prescription for the lord of the manor, his tenants and farmers, to fowl in the warren of another, was held good upon demurrer; Davies' case, 3 Mod. 246.

(e) 2 Com. 39.

(f) The author has pleasure in referring the reader for much useful informa

tion on the character of the game laws of this country, and for the means of forming his own judgment on the controverted right of lords of manors to sport over the grounds of others within their respective seigniories, to Mr. Chitty's Treatise on the Game Laws, and to Professor Christian's Notes to the Commentary of Mr. Justice Blackstone (2 Com. 27), on the right of property in such animals feræ naturæ as come under the denomination of game, in which the learned professor opposes the doctrine advanced by Sir W. Blackstone, that the sole property of all the game in England, and, as a consequence, the exclusive right of taking and destroying it, is vested in the king, as the ultimate proprietor of the soil. The reader's particular attention is also called to a useful work published a few years since, entitled "A Treatise on the Rights of Manors as deduced from the most ancient and best Authorities, with a Report on the Game Laws, and Comment," the author of which wholly dissents from the arguments of Professor Christian.

The author is induced to express his assent to Sir William Blackstone's position, that the sole right of property in all wild animals became vested in the king from the period, at least, of the establishment of the feudal system in this country; and he con

may exist in this species of animal ratione soli (g), yet it is clear that

ceives that the right of the lord of the manor or other royalty to take and kill game within the confines of his seigniory, either as an exclusive right or concurrently with the owners of the soil, is founded on the prerogative title of the king. Whether the right be exclusive or concurrent must depend on the words of the grant, or evidence of usage, for the right may exist by prescription, which presupposes a grant. But an exercise for several years of the right of sporting, which might be referrible to the tenant's acquiescence, will not induce the presumption of an ancient grant; Pickering v. Noys, 4 Barn. & Cress. 639.

It is clear that an ancient grant from the crown of the franchise of taking and killing game within a limited district, would give the grantee the power of going over the grounds of others without being considered a trespasser. Such a grant would in fact vest the franchise of a free warren in the grantee, which alone can justify a person's sporting on another's soil, or, indeed, even on his own; 2 Bl. Com. 39; Keeble v. Heckeringill, 11 Mod. 74; 1 Chit. G. P. 167. Vide also the above case of Pickering v. Noys, in which the Court of B. R. held that it was for the defendant, upon the issue joined, to prove first that he had such a royalty, and secondly that at the time in question he was in the due exercise of it.

It does not appear to the author that the lord of a manor can claim any right of sporting over grounds not in his own possession under the provisions of the several acts of parliament authorizing lords of manors to appoint game-keepers, and empowering such keepers, for the preservation of game, to search for noxious animals and engines of destruction, and also to kill game for the use of the lord. The author apprehends, indeed, that the powers of game-keepers appointed under the acts of parliament alluded to, would be held to extend only (as far as they may be protected by the provisions of those acts against an action of trespass) to such lands as should be in the

lord's immediate possession, and those perhaps belonging to others, over which the lord had a right to sport under an ancient grant from the crown, or by prescription. The case of the Earl of Ailesbury v. Pattison, Dougl. 28, clearly shows that the courts of law are disposed to circumscribe as much as possible the powers of the acts of 22 & 23 Car. 2, and 5 Anne, and other subsequent statutes, authorizing lords and ladies of manors to appoint game-keepers; for in that case Lord Mansfield held, that the words "manors or other royalties" in the first-mentioned act, did not extend to a hundred or wapentake, which would have been expressed if the legislature had meant the act to apply to royalties of a higher nature than a lordship or manor.

[But N. B. The provisions of the act of 1 & 2 Will. 4, c. 32, have somewhat extended the powers of lords of manors over game. The act not only authorizes the lord to appoint gamekeepers to preserve or kill game within the limits of the manor for the lord's use; but by the 10 sect. the lord may pursue and kill game upon the wastes and commons, and give authority to any certificated person to enter upon such wastes and commons for the purpose of pursuing and killing game. The 13 sect. authorizes lords of manors to appoint one or more person or persons as a gamekeeper or gamekeepers to preserve or kill the game within the limits of such manors for the use of the lords, and to seize for their use all dogs, nets, &c. used for taking or killing game within the limits of such manors by any person not authorized to kill game for want of a game certificate. And by the 15 sect. the owner of land in Wales, of the clear annual value of 500l., not being within the bounds of any manor, may appoint a gamekeeper to preserve or kill the game thereupon.]

The author would further submit, that the franchise of sporting over the grounds of another under a grant to the lord of a manor may be lost, as well by a conveyance of the demesnes of the manor without re

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