Duke was attaint of high treason; in the 14th Hen. 8, the King granted the said manor, &c., with all advowsons appendant, &c., to Richard Wingfield and the heirs male of his body; in the 16th Hen. 8, it was enacted by parliament, that the said Duke shall forfeit all manors, &c., advowsons, &c., which he had, &c., in 4th Hen. 8. The King, in the 37th Hen. S, granted and sold for money the said rectory of Kimbolton, as impropriate in fee, which by mesne conveyances came to the plaintiff; in the 37 Eliz., Beard, the defendant, obtained a presentation of the Queen by lapse, pretending that the said church was not lawfully impropriate to tha said Prior of Stoneley; because, 1st, Humphrey de Bohun, who did grant it to the Prior, had nothing in it, for that it did not pass to his ancestor by these words, manerium cum pertinentibus:-2nd, or for this, that he had no more than an estate tail, and then by his death his grant was void*. But it was resolved by Lord Chancellor Ellesmere, with the principal judges, and upon consideration of precedents, that the plaintiff should enjoy the said rectory; "for, although that by any thing which can be now shewn, the impropriation is defective, for by nothing which now appears, the issue in tail had any thing in the advowson at the time of his grant to the said Prior, for that the advowson did not pass by the grant of the King by those words, cum pertinentibus,' yet it shall be now intended, in respect of the ancient and continual possession, that there was a lawful grant of the King to the said Humphrey, who granted in fee; so that he might lawfully grant it to the said priory. And all shall be presumed to be done, which might make the ancient impropriation good; for tempus est edax rerum; and records and letters patent and other writings, either consume, or are lost, or embezzled; and, God forbid, that the ancient grants and acts should be drawn in question, although that they cannot be shewn, which at first was necessary to the perfection of the thing; and, if the impropriation had been drawn in question in the life-time of any of the parties to it, they might have shewn the truth of the matter: but after the death of all the parties, and after so many successions of ages, in all which the said church was esteemed and allowed to be rightfully impropriate, if any objection or exception should now It has been since settled that a grant in fee by tenant in tail is voidable only, not void on his death. (Ante, p. 198). prevail, the ancient and long possession of the owners of the said rectory should hurt them; for, if these objections or exceptions had been made in the lives of the parties, without any question they had been answered, or otherwise, in so many successions of ages, it would have been impeached or impugned." In the case of the advowson of Chester-le-Street the manor had been granted by the crown, with an express exception of the advowson. Lord Mansfield, on two presentations and a possession of about 150 years, directed the jury to presume a grant from the crown*. It must be admitted, however, that this was a very strong decision, and that probably the court went the utmost possible extent in presuming the grant. 159. In Gibson v. Clarke 2, the Master having reported in favour of 21 Jac. & Walk. the title, an exception was taken by the purchaser as to the title of the advowson of Belford, part of the premises comprised in the purchase. The objection was, that no grant from the crown of the advowson was shewn. It appeared that King Henry 8, by letters patent of the 37th year of his reign, granted to A., and his heirs, "all the house and scite of his late cell, or of his monastery of Bamburgh aforesaid, with all its rights, members, and appurtenances in the county of Northumberland, to the late monastery of St. Oswald, in the same county, then dissolved, formerly belonging; and all and all manner of tithes of &c.; except always, and to the king and his successors reserved, all and singular the advowsons, donations, presentations and rights of patronage whatsoever to the said cell and premises belonging or appendant." There was also a grant, by letters patent of the 8th James 1st, of all those the tithes of sheaf and grain coming and renewing in the whole town of Belford, with a reservation to the * On this case being cited in Gibson v. Clarke, Lord Eldon observed, that Lord Mansfield used to say, that it was one of the best decided cases; but Lord Chief Baron Eyre said, that if it was law, presumption was run mad." (1 Jac. & Walk. 161, n.). In the argument in Harmwood v. Oglander, (8 Ves. 129, n.), his Lordship remarking upon the same case, as an instance of the length to which the 13 8: 4 W. 4, c. 27. crown of all and singular advowsons, donations, free dispositions, and rights of patronage, and of all and singular rectories, churches, vicarages, chapels, and all other ecclesiastical benefices whatsoever, to the premises or any part thereof, in anywise belonging, appertaining, incident, appendant, or incumbent. The vendor's title to the tithes was derived from these grants. The manner in which the advowson had been acquired did not appear; it had been included in a recovery suffered in 1709, by parties who rested their title upon the will of A., dated in 1681, by which the manor and tithes were devised, but the advowson was not mentioned; it had afterwards been comprised in several conveyances, fines, and recoveries. In 1774 the curacy of the chapel of Belford was augmented, with the consent of the governors of Queen Anne's Bounty, by the then patron (under whom the vendor claimed); and three presentations had been subsequently made by him and his representatives. In the episcopal registry no presentation was to be found earlier than the first of these; and it was supposed to have been a donative till then, and it was so styled in the Lib. Regis; no evidence of any previous nominations was produced. Lord Eldon said, "if the title of this family be evidenced by conveyances and deeds for a period of nearly 140 years, and there have been three presentations by them and none by the crown, I am of opinion that this is a case in which a grant would be presumed," and accordingly overruled the exception. This subject has now, however, been put upon a satisfactory footing by the statute already adverted to 1, which fixes a period during which adverse possession will confer an absolute title. By this statute it is enacted " I that, after the thirty-first day "of December, one thousand eight hundred and thirty-three, no person shall bring any quare impedit, or other action, or any "suit to enforce a right to present to or bestow any church, vicarage, or other ecclesiastical benefice, as the patron thereof, after "the expiration of such period as hereinafter is mentioned, (that "is to say) the period during which three clerks in succession shall "have held the same, all of whom shall have obtained possession "thereof adversely to the right of presentation or gift of such person, or of some person through whom he claims, if the times "of such incumbencies, taken together, shall amount to the full 66 "period of sixty years; and if the times of such incumbencies 'shall not together amount to the full period of sixty years, then "after the expiration of such further time as with the times of "such incumbencies will make up the full period of sixty years1." 1 Sect. 30. And also," that, when on the avoidance, after a clerk shall "have obtained possession of an ecclesiastical benefice adversely "to the right of presentation or gift of the patron thereof, a "clerk shall be presented or collated thereto by his Majesty, or the ordinary, by reason of a lapse, such last-mentioned clerk shall "be deemed to have obtained possession adversely to the right "of presentation or gift of such patron as aforesaid; but, when "a clerk shall have been presented by his Majesty, upon the "avoidance of a benefice, in consequence of the incumbent thereof "having been made a bishop, the incumbency of such clerk shall, "for the purposes of this act, be deemed a continuation of the "incumbency of the clerk so made bishop 2." And also, 66 that, in the construction of this act, every person claiming a right to present to or bestow any ecclesiastical be"nefice as patron thereof, by virtue of any estate, interest, or right which the owner of an estate tail in the advowson might "have barred, shall be deemed to be a person claiming through "the person entitled to such estate tail, and the right to bring any quare impedit, action, or suit, shall be limited accordingly 3." 66 66 66 And also," that, after the said thirty-first day of December, "one thousand eight hundred and thirty-three, no person shall "bring any quare impedit, or other action, or any suit, to en"force a right to present to or bestow any ecclesiastical benefice, "as the patron thereof, after the expiration of one hundred years from the time at which a clerk shall have obtained pos"sesion of such benefice adversely to the right of presentation "or gift of such person, or of some person through whom he "claims, or of some person entitled to some preceding estate "or interest, or undivided share, or alternate right of present"ation or gift, held or derived under the same title, unless a "clerk shall subsequently have obtained possession of such bene"fice on the presentation or gift of the person so claiming, or "of some person through whom he claims, or of some other person entitled in respect of an estate, share, or right, held or "derived under the same title 4." 2 Sect. 31. 3 Sect. 32. 4 Sect. 33. 1 Sect. 34. And also, "at the determination of the period limited by this "act to any person for bringing any writ of quare impedit, or "other action or suit, the right and title of such person to the advowson, for the recovery whereof such action or suit respectively "might have been made or brought within that period, shall be "extinguished1." 2 Crui. Dig. Franchise, pl. 76. SECT. 7.-OF FRANCHISES. Of forestal rights, 636.—Of rights of fishery, 639.—Of the right to hold a fair or market, 639. A franchise is a royal privilege, or a branch of royal prerogative, subsisting in the hands of a subject, by grant from the crown. Many of these franchises-as the right to hold a court-leet, to have waifs, wrecks, estrays, treasure-trove, royal fish, forfeitures, and deodands, &c. are annexed to manors, having been granted by the crown to the owners of these manors. Franchises may be destroyed by surrender; by forfeiture for mis-user or non-user; and, lastly, by union with the crown, where the franchise, at the time of the original grant, was 'parcel of the flowers of the crown', and the king has them again jure coronæ; but not where, at the time of the grant, the franchise was then first called into existence 2. Of forestal rights ]-Another franchise annexed to real property is that of having a forest, chase, or warren, with a right of 3 4 Inst. c. 73. killing all sorts of game therein3. A forest is a "certain territory the Forest Laws, 18. 54 Inst. 316. or circuit of woody grounds and fruitful pastures, known in its bounds and privileges, for the peaceable being and abiding of all wild beasts and fowls, of forest chase and warren, to be under the king's protection, for his princely delight, replenished with beasts of venary and chase, and great coverts of vert for succour of the said beasts, for preservation whereof there are particular laws, 4 Manwood on privileges, and offices belonging thereunto 4." Vert and venison are the two great ornaments of a forest5: vert (à viridate) comprehends all trees and underwood growing in a forest and bearing green leaves, which may cover or feed the deer; venison comprehends every beast of the forest or chase which is taken by hunting. On the establishment of the feudal system, it became a principle of law, that the right of hunting or taking all beasts of |