tion 3 of the 2 & 3 Will. 4, c. 71, because in that section the Crown is not named (e). A claim to a right of common against the Crown, Right of where the Crown is restrained by legislative provision common. from creating such rights by grant, when enjoyed for a less period than that fixed by the 2 & 3 Will. 4, c. 71, is not sustained by that statute. And showing that such a right could not be created by the Crown by reason of such restraint is not showing that it is determined by showing only the commencement within the period fixed by such statute (ƒ). rent. Tithes and rents are excepted from the 2 & 3 Will. 4, Tithes and c. 71, s. 1, but are embraced by the 9 Geo. 3, c. 16, and the 48 Geo. 3, c. 47, in express terms (g). mandi. Again, all prescriptions and claims of or for any Modus decimodus decimandi, or of or to any exemption from or discharge of tithes by composition real or otherwise, are to be deemed good and valid in law after the lapse of certain times, and in certain cases, as will be shown in the next chapter (h). not established Such claims of these various incorporeal rights, how- Claims, bad in ever, as are in law bad in themselves, e. g., an unlimited themselves, right claimed in alieno solo (i), cannot be substantiated by user. by user, however long, under the Statutes of Limitation, and are not established by the 2 & 3 Will. 4, cc. 71, 100 (k). Franchises or liberties are expressly excepted from Franchises, the statutes 9 Geo. 3, c. 16, and 48 Geo. 3, c. 47, and exception of. are synonymous, and defined as a royal privilege, or branch of the Crown's prerogative, subsisting in the hands of a subject (1). To some of these incorporeal (e) Vide ante, Chap. II. of this Book, Sect. I. p. 243. (f) Mill v. The Commissioner of the New Forest, 18 C. B. 60. See also Goodtitle d. Parker v. Baldwin. 11 East, 488. (9) Supra, p. 317. (h) 2 & 3 Will. 4, c. 100. 415. (k) See Att.-Gen. v. Mathias, 4 Jur., N. S. 630. (7) Finch, L. 164; 1 Stephen's Com. 670; 2 Com. 37. How created, -and extinguished. In the nature of a benefit, are within the Prescription Act. Services. rights a title by prescription cannot, and to others such a title can, be made (m). To those to which it cannot be made, the title is by charter only (n), and none of them can pass without deed (o). When those which are in the king's own hands as parcel of his Crown are granted by him, and come again to him, they are merged in the Crown (p), and he has them again in jure coronæ, and if appendant to possessions before, the appendancy is destroyed. But when they are erected and created by him ab initio, and are not parcel of his Crown, they are not by the accession of them again to the Crown extinct, nor the appendancy of them severed from the possessions (7). If a grant of a franchise in or over lands be made to a grantee who has the same franchise in or over the same lands by prescription, the prescriptive title would be extinguished (r). But if the grant be of the franchise in or over demesne lands and copyhold lands, and the franchise claimed by prescription be in or over the demesne lands only, the prescriptive title in or over the copyholds would be unaffected by the grant (s). Franchises or liberties in the nature of a profit or benefit so to be taken and enjoyed, as free chase or free warren (t), seem to be within the Prescription Act (u), but when not of that nature are not within it. Services also are expressly excepted from the Prescription Act (x). These rights are common to all certain estates, or proper to inheritances, and are either incident to or arise by reservation in respect of tenure (y). Servitium in lege Angliæ regulariter accipitur pro servitio, quod per tenentes dominis suis debitur (m) Co. Litt. 114 a, b. (0) Ib. (P) Plowd. 219; 9 Rep. 24; (r) Com. Dig. tit. Præscription Villebois, 13 Mee. & W. 313. (t) See Earl of Carnarvon v. Villebois, supra. (u) 2 & 3 Will. 4, c. 71. (y) Finch, L. 138, 139. ratione feodi sui (z). The only tenures now existing are socage, frankalmoign, copy hold, and grand serjeanty, as far as its services are honorary (a), with the services incident to those tenures. And as some of these services of tenure, by their nature, and others of them which by common possibility could not happen within the time of limitation fixed by the 32 Hen. 8, c. 2, were not within that statute (b): so, it is conceived that, with the exception of rent service-so called because accompanied with some corporal service, as fealty at the least (c)-none of these services are within either of these two statutes of Geo. 3; and although some of them are expressly within the 3 & 4 Will. 4, c. 27, yet this statute, as already shown, does not affect the Crown, and they are unaffected by any law of this nature. The possessions of the Duchy of Cornwall, embraced Possessions of by the statute applied to them (d), are lands, manors, Cornwall. Duchy of tenements, rents, tithes, or hereditaments, exclusive of liberties or franchises, mines, minerals, stone, or substrata. The observations already made upon the terms of the two statutes relating to the possessions of the Crown jure coronæ embraced by those statutes, and also, as respects rents, advowsons, services and other rights claimed against the Crown not embraced by those statutes, but by the other statutes noticed in this section, are applicable to the terms of the statute applied to the possessions of the Duchy of Cornwall also. and minerals. One of the objects of the 7 & 8 Vict. c. 105 was that What mines the rights and estates of the Duke of Cornwall and all other persons in respect of the mines, minerals, stone, and substrata in, upon, under, and of certain tenements, (z) Co. Litt. 65 a. (a) 12 Car. 2, c. 24; 2 Com. chap. 6. (b) Co. Litt. 115 a. (c) Litt. s. 122; Co. Litt. 87 b; Finch, L. 138. (d) 7 & 8 Vict. c. 105. and in, upon, under and of all waste and other lands within certain manors in the county of Cornwall, the mines, minerals, stone, or substrata in, upon, under or of which belonged, or were claimed to belong, to the Duke of Cornwall, and the rights, powers and privileges of the Duke as to getting, selling and disposing of the same, should be declared, established, and regulated. "The Cornwall Submarine Mines Act, 1858" (e), was for declaring and defining the respective rights of her Majesty, and of the Prince of Wales and Duke of Cornwall, to the mines and minerals in, or under, land lying below high-watermark, within and adjacent to the county of Cornwall, and for other purposes; and enacts (f), that the expression "mines and minerals" shall comprehend all mines and minerals, and all quarries, veins, or beds of stone, and all substrata of any other nature whatsoever, and the ground and soil in, upon, and under which, such mines and minerals, quarries, veins or beds of stone, and other substrata lie, and the words "county of Cornwall" shall mean the said county, exclusive of any lands added thereto, or taken therefrom, by the 7 & 8 Vict. c. 61. These two statutes (g), as respects mines and minerals, may be considered in pari materiâ, and the enactment in the latter statute here stated as a legislative interpretation of the meaning and extent of those terms in the former act. The 3 & 4 Will. 4, c. 27, SECTION II. Things, exclusive of those the Subject of the last The things here to be noticed as affected by the laws now under consideration are those to which the statute (e) 21 & 22 Vict. c. 109. (f) Sect. 8. (9) Caps. 105, 109. 3 & 4 Will. 4, c. 27, is applicable, and also those things under the term The 3 & 4 Will. 4, c. 27, is applied to corporeal things real, and also to some things incorporeal, and the former class and one of the latter, tithes, are comprehended under the term land. to The term land as used in this statute, besides its all corporeal and to tithes, and means the inheritance, the freehold tithes, A canal, the works of, and the tolls payable under —canal, the act creating, it (j), quarries and limestone (k), and —quarries, veins of coal (1) and clay (m), are land within the meaning of this statute. Tithe rent-charge is either land, as tithes, or rent as tithe renta periodical sum of money payable out of land, within charge, the meaning given to the terms land and rent by this statute (n). A several fishery when it includes, as it may, the soil a several of a river (o), and regarding the soil as the principal, (g) See Co. Litt. 4 a; Touch. 91. (h) 2 De Gex, M. & G. 473. (i) 15 Mee. & W. 622; 10 Ir. L. R. 513. (j) Hodges v. The Croydon Canal Company, 3 Beav. 89. (k) M'Donnell v. M'Kinty, 10 Ir. L. R. 514; 8 Ell. & B. 145. (7) 11 Mee. & W. 39; Plowd. 330. (m) 1 H. & N. 799. (n) Sheil v. The Incorporated Society, 10 Ir. Eq. Rep. 411. (0) See Co. Litt. 4b, n. 2, 122 a, n. 7; Duke of Somerset v. Fogwell, 5 B. & C. 875; Snape and Ux. v. Dobbs, 1 Bing. 202; Doug. 56; 1 Car. & K. 549; Holford v. Bailey, 8 Q. B. 1000; 11 Ib. 426; Marshall v. The Ulleswater Steam Navigation Company, 3 Best & S. 732; see also Malcomson v. O'Dea, 10 H. L. C. 593. fishery, |