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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 (1).
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 o. 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. aliler, 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, froin 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.
(l) 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. (9)). — 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 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.
in his own grounds; for the chase, warren (0) Ib. 14, 22; 12 Mod. 271.
and park are collateral inheritances, and (p) These royalties are all specified in not issuing out of the soil, as the common the 82nd clause of the 4 & 5 Vict. c. 35, doth ; and therefore if a man hath a chase among the manorial rights excluded from in other men's grounds, and after purchase the operation of the act, unless expressly the grounds, the chase remaineth." commuted.
As to commonable rights and other like (9) A park consists of vert, venison and privileges in chases or parks, (and which inclosure, and a determination in either of may also exist by prescription in forests,) these requisites amounts to a disparkment; see 4 Inst. 298, 299, &c. Sir Charles Howard's case, Cro. Car. 60. (1) The courts of the forest were :(r) 4 Inst. 314.
But it appears that 1. The Woodmote Court, or Court of Atroyal forests were sometimes granted by tachments, kept before the verderors every the crown to a subject, with express au- forty days for the presentment and inrolthority for the administration of justice ment only of attachments de viridi et rethere; Leicester Forest case, sup.
natione. 2. The Court of Survey or law(8) See Co. Lit. 114 b; 11 Co. 87 b. ing of dogs, held every third year. 3. The Lord Coke (4 Inst. 318) says,
“ And it is Swainmote Court held thrice in the year to be observed that a man may have a by the steward (who acted ministerially free chase as belonging to his manor in only) before the verderors, (there being his own woods, as well as a warren or park 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 laws greatly relaxed, and that by many attachments of the foresters were pre- subsequent statutes and long disuser“ this sented, and the freeholders within the prerogative is now become no longer a forest were to appear and make inquests grievance to the subject.” and juries; but the court did not follow ( x) Ante, p. 660, n. (p). up its conviction by judgment; and 4. (y) 11 Co. 87 b; Co. Lit. 114 b; Br. The Court of the Justice Seat, holden before Warren, pl. 1, cites 3 Hen. 6, 12; Manw. the chief justice of the forest, called in the Warren. Forrest. pl. 43. And iv tresbooks justice in eyre, and which could not pass against the gamekeeper of the lord of be kept oftener than every third year, and the manor, it lies upon the defendant to only on forty days' summons, one writ of prove a royalty in justification of the entry summons being directed to the sheriff of upon the plaintiff's land, by showing a the county. And at the sessions of this grant of a free warren from the crown; justice in eyre, he was to proceed on the Pickering v. Noyes, 4 Barn. & Cress. 639. presentments made at the Swainmote And the right will not pass de novo merely Courts before a jury. It should seem that by the general words “ free warren," &c., a presentment or indictment of this court
Carr v. Smith, cited 2 Cr. & Jerv. (Ex.) previously found in the Swainmote was not 294, in Att. Gen. v. Parsons. traversable, but that an indictment in the (z) See F. N. B. 86, 87, and the notes. Court of the Justice Seat not found in the Beasts and fowls of warren are hares and Swainmote might be traversed, it having rabbits, pheasants and partridges ; Manw. been presented but by one jury: 4 Inst. 95. In Co. Lit. (233 a), a roe is also 291, cites 8 Ed. 3; Itinere Pickering, named as a beast of warren, and quail, 147 a; 21 Ed. 3, 48. See further as to rail, woodcock, herne, mallard, &c. as these courts, Com. Dig. Chase (R).
fowls of warren. Grouse are not birds of (u) It appears almost unnecessary to warren; The Duke of Devonshirev. Lodge, remind the student, that by the charter 9 7 Barn. & Cress. 36. Beasts of park or Hen. 3, (curta de foresta,) (the immuni- chase are buck, doe, fox, martron and roe; ties of which Mr. Justice Blackstone ob- Manw. 94 ; Co. Lit. 233 a; 8 Co. 138 b. serves, were as warmly contended for Beasts of forest or venary are hart, hind, and extorted from the king with as much bare, boar and wolf; Manw. 91; 8 Co, difficulty as those of Magna Carta itself,” 138 b. 2 Com. p. 416;) many forests were dis- (a) Br. Warren, pl. 3, cites 35 Hen. afforested and the penalties of the forest
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 feræ 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. tion on the character of the game laws of 5, citing 14 Hen. 4, 6; Vin. Ab. Warren, this country, and for the means of forming pl. 3, marg. And see as to the effect of his own judgment on the controverted the words, “and to have free warren right of lords of manors to sport over the in all demesne lands in the manor, grounds of others within their respective &c.," Att. Gen. o. Parsons, 2 Cr. & Jer. seigniories, to Mr. Chitty's Treatise on the (Ex.) 279. In that case (p. 308) Lord Game Laws, and to Professor Christian's Lyndhurst, C. B., on delivering the judg- Notes to the Commentary of Mr. Justice ment of the court, said, “ though the word Blackstone (2 Com. 27), on the right of • demesne' may, in some cases, be applied property in such animals fera natura as to any fee simple lands a man holds, yet come under the denomination of game, in it is more correct and usual to apply it to which the learned professor opposes the docthe lands of a manor, which the lord of trine advanced by Sir W. Blackstone, that that manor either actually has, or poten- the sole property of all the game in England, tially may have, in propriis manibus.” and, as a consequence, the exclusive
(c) Bowlston o. Hardy, Cro. Eliz. 547; right of taking and destroying it, is vested S. C. 5 Co. 104 a; Morris v. Dimes, 3 in the king, as the ultimate proprietor of Nev. & Mann. 671; S. C. 1 Adol. & Ell. the soil. The reader's particular atten654. By prescription a person may have tion is also called to a useful work puba warren in a forest, but there must be an lished a few years since, entitled " A Treaallowance of it in eyre, that is in the court tise on the Rights of Manors as deduced of the forest; Sir Richard Harrison's case, from the most ancient and best Authori. W. Jones, 280.
ties, with a Report on the Game Laws, (d) But a free warren is not necessarily and Comment,” the author of which wholly an exclusive right, for in one case a pre- dissents from the arguments of Professor scription for the lord of the manor, bis Christian, tenants and farmers, to fowl in the warren The author is induced to express his asof another, was held good upon demurrer; sent to Sir William Blackstone's position, Davies' case, 3 Mod. 246.
that the sole right of property in all wild (e) 2 Com. 39.
animals became vested in the king from the (5) The author has pleasure in refer- period, at least, of the establishment of the ring the reader for much useful informa- 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 lord's immediate possession, and those manor or other royalty to take and kill perhaps belonging to others, over which game within the confines of his seigniory, the lord had a right to sport under an either as an exclusive right or concurrently ancient grant from the crown, or by prewith the owners of the soil, is founded on scription. The case of the Earl of Ailesthe prerogative title of the king. Whether bury v. Pattison, Dougl. 28, clearly shows the right be exclusive or concurrent must that the courts of law are disposed to cirdepend on the words of the grant, or evi- cumscribe as much as possible the powers dence of usage, for the right may exist by of the acts of 22 & 23 Car. 2, and 5 Anne, prescription, which presupposes a grant.
and other subsequent statutes, authorizing But an exercise for several years of the lords and ladies of manors to appoint right of sporting, which might be referrible game-keepers; for in that case Lord Mansto the tenant's acquiescence, will not in- field held, that the words“ manors or other duce the presumption of an ancient grant; royalties " in the first-mentioned act, did Pickering v. Noys, 4 Barn. & Cress. 639. not extend to a hundred or wapentake,
It is clear that an ancient grant from the which would have been expressed if the crown of the franchise of taking and kill- legislature had meant the act to apply to ing game within a limited district, would royalties of a higher nature than a lordgive the grantee the power of going over ship or manor. the grounds of others without being con- [But N. B. The provisions of the act of sidered a trespasser. Such a grant would 1 & 2 Will. 4, c. 32, have somewhat exin fact vest the franchise of a free warren tended the powers of lords of manors over in the grantee, which alone can justify a game. The act not only authorizes the person's sporting on another's soil, or, in- lord to appoint gamekeepers to preserve deed, even on his own; 2 Bl. Com. 39 ; or kill game within the limits of the manor Keeble v. Heckeringill, 11 Mod. 74; 1 for the lord's use; but by the 10 sect. the Chit. G. P. 167. Vide also the above lord may pursue and kill game upon the case of Pickering v. Noys, in which the wastes and commons, and give authority Court of B. R. held that it was for the de- to any certificated person to enter upon fendant, upon the issue joined, to prove
such wastes and commons for the purpose first that he had such a royalty, and se- of pursuing and killing game. The 13 condly that at the time in question he was sect. authorizes lords of manors to appoint in the due exercise of it.
one or more person or persons as a gameIt does not appear to the author that keeper or gamekeepers to preserve or kill the lord of a manor can claim any right of the game within the limits of such manors sporting over grounds not in his own pos. for the use of the lords, and to seize for session under the provisions of the several their use all dogs, nets, &c. used for taking acts of parliament authorizing lords of or killing game within the limits of such manors to appoint game-keepers, and em- manors by any person not authorized to powering such keepers, for the preserva- kill game for want of a game certificate. tion of game, to search for noxious ani- And by the 15 sect. the owner of land in mals and engines of destruction, and also Wales, of the clear annual value of 5001., to kill game for the use of the lord. not being within the bounds of any manor, The author apprehends, indeed, that the may appoint a gamekeeper to preserve or powers of game-keepers appointed under kill the game thereupon.] the acts of parliament alluded to, would The author would further submit, that be held to extend only (as far as they the franchise of sporting over the grounds may be protected by the provisions of of another under a grant to the lord of a those acts against an action of tres- manor may be lost, as well by a conveyance pass) to such lands as should be in the of the demesnes of the manor without re