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17. When does escheat take place ?-11.
In case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the law requires, to prevent the title of occupancy from again taking place, the doctrine of escheats is adopted in almost every country, whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances to which no title can be formed.
18. What things are in common, notwithstanding the introduction and continuance of property ?–14.
The elements of light, air, and water, among other things. Also, the generality of those animals which are said to be ferce naturce, which any man may seize upon and keep for his own use and pleasure.
19. Has everything a legal owner ?–15.
Yes; the legislature has steadily pursued that wise and orderly maxim, of assigning to everything capable of ownership a legal and determinate owner.
OF REAL PROPERTY; AND, FIRST, OF CORPOREAL
1. What are the objects of dominion or property ?–16.
Things, as contradistinguished from persons. 2. Into what kinds are things by the law of England distributed ? -16.
Into things real, and things personal. 3. What are things real !-16.
Things real are such as are permanent, fixed, and immoveable, which cannot be carried out of their place, as lands and tenements.
4. What are things personal ?–16.
Things personal are goods, money, and other moveables, which may attend the owner's person wherever he thinks proper to go.
5. What are things real usually said to consist in?–16.
Lands, tenements, and hereditaments.
6. What does the term land comprehend ?-16.
All things of a permanent, substantial nature ; being & word of very extensive signification.
7. What does the word tenement signify ?-17.
It is a word of still greater extent thaộ land, and in its original, proper, and legal sense, it signifies anything that may be holden, provided it be of a permanent nature ; whether it be of a substantial and sensible, or of an unsubstantial, ideal kind.
8. Horo does Sir Edward Coke define hereditament ?–17.
He says, “ An hereditament is by much the largest and most comprehensive expression ; for it includes not only lands. and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed.”
9. Of what kinds are hereditaments ?-17.
Corporeal, and incorporeal. Corporeal hereditaments consist of such as affect the senses, such as may be seen and handled by the body ; incorporeal are not the objects of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.
10. Of what do corporeal hereditaments consist ?–17.
They consist wbolly of substantial and permanent objects ; all of which may be comprehended under the general denomina. tion of land only.
11. Do structures pass with the land ?-18.
12. Horo is water considered ?-18.
It is considered as a species of land ; an action cannot be brought to recover possession of a pool or other piece of water, by the name of water only; it must be brought for the land that lies at the bottom, as so many acres of land covered with water. 13. What extent has land in its legal signification ?-18.
It has an indefinite extent, upward as well as downward; so that the word "land" includes not only the face of the earth, but everything under it, or over it. Cujus est solum, ejus est usque ad coelum, is a maxim of the law.
14. What passes in law by a grant of water 9—19.
A right of fishing only.
OF INCORPOREAL HEREDITAMENTS.
1. What is an incorporeal hereditament ?—20.
It is a right issuing out of a thing corporate (whether real or personal,) or concerning, or annexed to, or exercisable within the same. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like ; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels.
2. Of what sorts are incorporeal hereditaments ?—21.
They are principally of ten sorts : advowsons, tithes, com. mons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.
3. What is an advorson 1–21.
It is the right of presentation to a church, or ecclesiastical benefice.
4. What are tithes ?—24.
They are defined to be the tenth part of the increase, yearly arising and renewing from the profits of land, the stock upon lands, and the personal industry of the inhabitants. 5. When does “time of memory” commence ?—23.
Time of memory hath been long ago ascertained, by the law, to commence from the beginning of the reign of Richard the First.
6. Hou may any custom be destroyed ?—23.
By evidence of its non-existence in any part of the long period from that time to the present.
7. What is right of common ?-32.
A profit which a man hath in the land of another; as to feed bis beasts, to catch fish, to dig turf, to cut wood, or the like. It is chiefly of four sorts : common of pasture, of piscary, of turbary, and of estovers.
8. What is common of piscary?—34.
It is a liberty of fishing in another man's water.
9. What is common of turbary ?—34.
A liberty of digging turf upon another's ground. 10. What is common of estovers ?—35.
A liberty of taking necessary wood, for the use or furniture of a house or farm, from off another's estate.
11. What is a right of way?-35, 36.
It is a right of going over another man's ground, and has reference only to private ways, in which a particular man may have an interest and a right, though another be owner of the soil.
12. Hovo does private right of way arise ?-36.
It may be founded on a special permission, or grant. A way may be also by prescription. A right of way may also arise by act and operation of law.
13. How may it arise by operation of lav 2-36.
If a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it, and I may cross his land for that purpose without trespass ; for when the law doth give anything to one, it gives impliedly whatsoever is necessary for enjoying the same.
14. What are franchises ?—37.
Franchise and liberty are used as synonymous terms ; and their definition is a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject.
15. What is an annuity, and wherein does it differ from a rentcharge ?–40.
An annuity is a thing very distinct from a rent charge ; a rent charge being a burden imposed upon and issuing out of lands, whereas, an annuity is a yearly sum chargeable only upon the person of the grantor.
16. What are rents ?–41.
A certain profit issuing yearly out of lands and tenements corporeal.
17. What are the requisites to a rent?–41.
1st. It must be a profit. 2d. The profit must be certain. 3d. It must issue yearly. 4th. It must issue out of the thing granted. 5th. It must issue out of lands and tenements corporeal.
18. What rents are there at common law ?–41.
Rent service, rent charge, and rent seck.
19. What is rent service ?–42.
It is so called because it hath some corporeal service incident to it, as, at the least, fealty or the feodal oath of fidelity.
20. What is rent charge ?—42.
It is where the owner of the rent hath no future interesi, or reversion expectant in the land.
21. What is rent seck ?–42.
It is in effect nothing more than a rent reserved by deed, but without any clause of distress, or a barren rent.