[and park, apply generally the principles which have been before noticed in respect of a forest; with this exception, however, as to a park, that it is incapable of being claimed in alieno solo, and can exist only in land belonging to the owner of the franchise himself.

A free fishery, or the exclusive right of fishing in a public river, is also a royal franchise. In private rivers (viz., in those not navigable), as the bed or soil, so the right of fishing presumably belongs to the owners of the land on either side, and to them only (q); but in those which are public, that is, navigable, while the bed (so far at least as the tide flows) appertains to the Crown, the right of fishing belongs primâ facie to the public at large (r). But either in public or in private rivers, there may be a particular title in some individual, by which the presumptive right may be excluded; and this may take place, in a public river, by force of some royal grant, or of some prescription entitling a private person and his heirs to the exclusive right of fishing therein (s), a privilege which is called in the books a "free fishery" (t), and sometimes a "several fishery " (u). Grants of this description can no longer be made by the Crown (x), being prohibited by King John's great charter (y), and the second and third confirmations of it in the reign of his successor, whereby also the right of making weirs in our public rivers was restrained (2). But the right of making such grants, prior to its prohibition, was considered as one of the flowers of the prerogative; and it is from this origin that the validity of a free fishery at the present day must in every case be derived. If

(q) Hale, De Jure Maris, ch. 1. (r) Hale, ubi sup. c. 3; Carter v. Murcot, (1768) 4 Burr. 2163.

(s) Carter v. Murcot, ubi sup. (1) Seymour v. Courtenay, (1771) 5 Burr. 2814.

(u) Holford v. Bailey, (1849) 13

Q. B. 446. (A “several fishery ” excludes the rights of others; a "free fishery" does not.)

(x) Duke of Somerset v. Fogwell, (1826) 5 B. & C. 875.

(y) Cap. 47 (ed. Stubbs).
(2) Cap. 33.

[a free fishery should have fallen to the Crown by forfeiture, it may, semble, be re-granted (a). Free fishery, it need hardly be observed, is a franchise, and is wholly different from the right of common of piscary formerly mentioned, the latter not being a franchise at all, but a right created by the grant of a subject. Also, in a free fishery, a man has a qualified property in the fish before they are caught; while in a common of piscary, he has no property at all till capture (b).

VI. Rents (including annuities) are the last species of incorporeal hereditaments that we propose to notice in this place. The word rent (reditus) signifies a compensation or return, of a certain amount, yielded periodically out of the profits of some corporeal hereditament, by the tenant thereof. First, it is yielded, that is, paid as a thing due; and therefore it is said, by the antient lawyers, to lie in render, in contradistinction to those incorporeal hereditaments, (as common or the like,) which the party entitled thereto is merely authorised to take for himself, and which are, consequently, said to lie in prender. Second, it is of certain amount, or that which may be reduced to certainty by either party; for certum est quod certum reddi potest (c). Third, it is payable periodically, as yearly, or in every second, third, or fourth year, or the like (d). Again, it is considered as payable out of the profits of the land, and must consequently not be part of the land itself (e); wherein it differs from an exception in a grant, which is always part of the thing granted. So there cannot be reserved, by way of rent, the vesture or herbage of the land demised (f); though there is no occasion for rent to be, (as it usually is,) a sum of money. For spurs, capons, horses, corn, and other matters may

(a) Mayor of Colchester v. Brooke, (1846) 7 Q. B. 385.

(b) Smith v. Kemp, (1692) Holt.

322.

(e) Co. Litt. 142 a.

(d) Ibid. 47 a.

(e) Ibid., 141 b, 142 a.
(f) Ibid.

[be rendered by way of rent (g). Moreover, rent must, as the general rule, issue out of hereditaments corporeal; therefore a rent cannot be reserved out of a common, a franchise, or the like (h), or generally out of any incorporeal hereditament. But a grant of such annuity or sum may operate as a personal contract, and oblige the grantor to pay the money reserved (i). And, lastly, the person from whom rent is due must be the tenant of the land; but his tenancy may be either in possession, remainder, or reversion. For a rent may be as well reserved upon the grant of a reversion or remainder, as on the conveyance of an estate in possession (k).

There were known to the common law three manner of rents, viz., rent-service, rent-charge, and rent-seck (1). Rent-service is where the rent accrues in connection with a tenure, attended (as tenure almost invariably is) by fealty, or by fealty and other services (m); and this whether the party to whom the rent is due be entitled to fealty as having the reversion of the land out of which the rent issues, or as having the mere seignory. Thus if A., seised in fee, make a gift of land to B. in tail, or demise to him for life, or years, reserving a rent; or if B. be seised in fee of a tenement holden of A. as lord of a certain manor, at a certain antient rent, such rent is, in either case, rent-service, for it is due as from a tenant owing fealty to his lord. To rent of this description the common law attaches as of common right, and independently of any express provision for that purpose between the parties, the power of distress which was incident to the fealty due by the tenant to his landlord (n). That is, the lord is entitled, in the event of the rent falling into arrear, to enforce payment without legal process, by entering upon the land, and seizing the goods and

(g) Ibid.

(h) Ibid. 144 a, 47 a.

(i) Lord Hastings v. N. E. Ry.

Co. [1898], 2 Ch. 674.

(k) Co. Litt. 47 a, 142 a.

(2) Litt. s. 213.

(m) Ibid.; Co. Litt. 142 a.
(n) Litt. s. 214.

[chattels found thereon. And this common law right of distress attaches even to the rent payable by a tenant at will; although, by reason of there being no fealty in such a case, such rent is not properly a rent-service (0).

A rent-charge is where the owner of the rent has neither seignory nor reversion, and can consequently claim no fealty; yet is entitled to distrain by force of an express contract. As where a man by deed conveys to another his whole estate in fee simple, with a certain rent payable to him thereout, and adds to the deed a covenant or clause of distress, viz.-that, if the rent be in arrear, it shall be lawful to distrain for the same (p); or where a man by deed grants out of the land whereof he is seised a certain rent payable to another, with a like cause of distress (q). In either of these cases the land is liable to the distress, not of common right, but by virtue of the clause in the deed. And therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it (r).

A rent-seek (reditus siccus) is where the owner of the rent has neither seignory nor reversion, nor any such express power of distress as the owner of a rent-charge has; and in any of the cases of rent-charge we have just mentioned, if no clause of distress were inserted in the deed, the rent would, at the common law, be rent-seck (s).

There are also other species of rents mentioned in the books; but they are all reducible to one or other of the three above enumerated. Rents of assize are the certain established and antient rents of the freeholders and copyholders of a manor (t); and these antient rents cannot be departed from or varied. Those of the freeholders are frequently called chief rents (reditus capitales); and both sorts are indifferently denominated quit rents (quieti reditus), because thereby the tenant goes quit and free of

(0) Litt. s. 72.
(p) Ibid. s. 217.
(9) Ibid. s. 218.

(r) Ibid. s. 217.

(s) Ibid. ss. 217, 218.
(t) 2 Inst. 19.

[all other services. When these payments were received in silver or white money, they were antiently called white. rents or blanch ferms (reditus albi), in contradistinction to rents reserved in work, grain, &c., which were called black mail (reditus nigri) (u).] Quit rents are rentservice; from which it follows that the lord is entitled, as of common right, to distrain for them when they fall into arrear. Rack rent is a term expressive only of the proportion a rent bears to the value of the tenement on which it is charged, or in respect of which it is reserved; the rent being so termed when it is of the full value of the tenement, or near it. A fee farm rent is a rent-charge issuing out of an estate in fee, and occurs where an estate in fee is granted subject to a rent in fee, of at least one-fourth of the value of the lands at the time of its reservation (x); a grant of lands, reserving so considerable a rent, is indeed only letting lands to farm in fee simple, instead of the usual method of letting them for life or years. But it results from former explanations, that such a rent, if created by a subject since the statute of Quia Emptores, can never be a rent-service; for no fealty can be due to the grantor.

These are the general divisions of rent; but, though their correct apprehension is still of importance, the differences which formerly existed as to the remedies to be pursued in case of their non-payment are, for practical purposes, nearly at an end. For it has been provided by the Landlord and Tenant Act, 1730, s. 5, that any rentseck, rent of assize, or chief rent, may be recovered by the remedy of distress in the same manner as if such rent had been reserved upon a lease. But this provision, though still unrepealed, has been virtually superseded by the Conveyancing Act, 1881 (y), which in sect. 44 enacts, that any annual sum, whether charged on land or on the income of land, and whether payable half-yearly or other(y) 44 & 45 Vict. c. 41.

(u) 2 Inst. 19.
(x) Co. Litt. 143 b.