to be discharged of them, as if so many estovers had been granted to him, &c. And so shall it be if I have a rent issuing out of the land of J. S., &c., and I grant or release the same rent to J. S. in exchange for other land, tenement, rent, or common, &c., or to have a way over his lands to go, &c. Yet it is said by some, that in every exchange there ought to be a transmutation of the possession, &c., of the one exchanger into the other exchanger, otherwise the exchange is not good: but this saying is not true as appears by the cases last aforesaid.'

So in Re Brotherton's Estate it would have been 'good advantage and profit to the tenants to be discharged' of the easements.

It is therefore submitted that both the grounds given for the decision are erroneous.

CHARLES SWEET.

IT

THE CREATION OF EASEMENTS.

is respectfully submitted that the following arguments advanced by Mr. Underhill in his interesting article printed in the last number of this REVIEW (L. Q. R. xxiv. 199) may be answered in the manner subjoined.

1. That there is not a scrap of authority' in support of the proposition that proper words of limitation are necessary to create an easement in fee :-Certainly no case has been found, which decides the exact point. But there seems to be considerable authority in favour of drawing that conclusion. First, it appears from Litt. s. 1 and Co. Litt. 9 a, b, 307 a, that of things which lie in grant, as well as of things which lie in livery, an estate of inheritance cannot be conferred without using the proper words of inheritance (his heirs). Coke enumerates the exceptions to this rule (Co. Litt. 9 b, 10a), and apparently intends the list of exceptions given to be exhaustive; but he does not mention the grant of an easement among them. Then in Hewlins v. Shippam 1 it was expressly laid down (1) that there may be a freehold interest in an easement such as the privilege of laying a drain on another man's land and causing foul water to flow through it; (2) that the grant of such a privilege to a man, either without defining the limits of the estate given or for some specified time of uncertain duration, confers upon him an estate for his life, as in the case of a similar grant of land; and (3) that a right of way or a right of passage for water is an incorporeal right and stands upon the same footing with other incorporeal rights, such as rights of common, rents, advowsons, &c., and lies not in livery but in grant, and a freehold interest in it cannot be created or passed without deed. The case therefore seems to stand thus: Words of inheritance are necessary for the grant of an estate in fee simple in things which lie in grant. Easements are things which lie in grant. The conclusion to be drawn seems obvious.

2. That easements are not tenements, and cannot be the subject of tenure-But are they not tenements within the statute De Donis? How else can they be entailed (as in everyday practice they are) along with the lands which constitute the dominant tenement 2? Does the grant of an easement to a tenant in tail of the proposed dominant tenement and the heirs of his body give him a fee simple conditional? It seems to have been considered formerly that easements might be of two kinds-personal privileges in gross and servitudes annexed to land-and that the former kind were not, 2 See Co. Litt. 19 b, 20 a.

1 5 B. & C. 221, 228, 229.

but the latter were, tenements 1. In modern times it is not allowed that there can be an easement in gross 2.

3.

That an easement is not a hereditament:-In Re Brotherton 3 it appears that the Court of Appeal impliedly held that an easement is an incorporeal hereditament, and overruled Joyce J. on this point; for they agreed that it might be sold as such under the Settled Lands Acts; though it seems that they doubted (oddly enough *) whether an easement can be exchanged. In what respect does an easement fail to fit in with the definition of hereditament given in Co. Litt. 6 a? Though an easement may not now exist in gross, it has nevertheless a separate existence in law; it is no part of the dominant tenement.

4. That a freehold in futuro may be granted in an easement:This is equally the case with such incorporeal hereditaments as rents. The just inference appears to be that easements are subject to the same rules in all respects as they are.

5. That the creation of an easement is a matter of intention, because a perpetual easement may be created by a mere covenant, and no amount of intention is sufficient to pass the fee in corporeal hereditaments :-But the real gist of the cases cited by Mr. Underhill is that, in a deed of grant, the word grant need not be used if other words expressive of the intention to grant are employed. The same rule is applied to grants of the reversion of corporeal hereditaments :-It does not predicate anything with respect to the quantum of estate to be conveyed, and is entirely independent of the rule requiring words of inheritance to confer an estate in fee. It is significant that in every one of the cases cited by Mr. Underhill the covenant proved or pleaded was that the claimant and his heirs should have the easement alleged.

6

The rule requiring proper words of limitation to create an estate in fee is maintained with the utmost rigour 7. It is submitted that, having regard to the present state of the authorities, it is clearly the duty of a conveyancer instructed to draw a grant of a perpetual easement to use the proper legal words of inheritance, and that, where such a grant has been made without them, the title cannot safely be accepted. T. CYPRIAN WILLIAMS.

1 Bro. Abr. Grant, 130; Vin. Abr. Grant (T, pl. 5); Termes de la Ley, s. v. Easement; and see 2 Black. Comm. 35.

2 Ackroyd v. Smith, 10 C. B. 164; Rangeley v. Midland Ry. Co., L. R. 3 Ch. 306, 310, 311; R. v. Somers [1906] 1 K. B. 326, 329.

3 [1908] W. N. 56; 98 L. T. 547.

4 It is said in Shep. Touch. 292 that an exchange may be of things of the same nature or of divers natures, as a house for a rent or a rent for a way.

5 L. Q. R. xxiv. 200.

Shove v. Pinck, 5 T. R. 124; Haggerston v. Hanlury, 5 B. & C. 101.

7 Re Ethell & Mitchell & Butler's Contract [1901] 1 Ch. 945; Re Irwin [1904] 2 Ch. 752.

IT

THE KING v. ALMON. II.

T has been alleged by a modern writer1 that down to the death of Henry V cases of criminal contempt in the King's Bench were invariably dealt with according to the course of the common law, viz. by action, information, presentment, or indictment, and this statement is based upon a search through the Rotuli coram Rege, the Controlment Rolls, and the Year Books. The writer cites a number of instances of contempt from A.D. 1253 to 1421, including cases of abusing the judge or jury or the parties, in Court; assaulting jurymen or parties in Court; abusing or assaulting jurymen or parties on their way to Court; and shows that the procedure in every case was not summary but according to the ordinary course of law. In the case of John de Grauntsete (5 Edward III) 2 a conviction by the King's Court in Ireland of contempt in facie was reversed by writ of error because the offence had not been tried by a jury. The ancient practice is further proved by the case of Sir Robert de Scardeburgh, a judge, who in 14 Edward III brought an action of trespass against William Botevileyn and his wife, and subsequently brought a bill of trespass against the same defendants in respect of abuse of the plaintiff in the presence of the justices. The plaintiff prayed that inasmuch as the offence was committed in the presence of the justices they would take the inquest immediately; this was refused, but a writ was sent to the sheriff to cause twelve men to come from the neighbourhood of Westminster 3. A very early case (A.D. 1230) shows that a person, who attended in Court at a day fixed (to answer a charge of proceeding in the Court Christian concerning a lay fee in despite of a prohibition) but departed without leave, was held to be in mercy for contempt of the Court, and his attendance was enforced by a distress upon his lands and goods; but the amercement, which it will be observed was enforceable against his possessions and not against his person, seems to have been imposed to enforce obedience to the process of the Court and not as a punishment for a contempt in facie, for the offender could avoid the distress by complying.

1 The late Mr. F. Solly-Flood, Q.C., in an article, 'Prince Henry of Monmouth and Chief Justice Gascoign,' Trans. Royal Hist. Soc. (1886), vol. iii. N. S., at p. 147. 2 Coram Rege Rolls, M. 5 Edw. III, m. 128.

3 Year Books, by Pike, 14 Edw. III, pp. 322, 324, 326.

4 Bracton's Note Book, by Maitland, ii. p. 365, case 464.

The following are later instances of the punishment of contempt in facie, in the ordinary course of law. In Davies' case (1 Edward IV)1 a man, who struck another in the presence of the Court and threatened to hang him if he gave evidence, was indicted. The same procedure was followed in the reign of Elizabeth, where a man drew his sword on the stairs of the Court of Requests and resisted the sheriff, who was making an arrest 2. In 1605, one Bellingham jostled Anthony Dyer with his elbow and shoulder out of malice in Westminster Hall sedentibus curiis, so that he overthrew him and with his feet spurned him upon the legs, but did not smite him with his hand or any weapon. Held upon indictment that the offender's right hand should be cut off. Indictment was the procedure in Harrison's case (1638), where the offender rushed to the bar of the Common Bench when the Courts were sitting and cried out :-'I accuse Mr. Justice Hutton of high treason.' Again, 'It was resolved that if a counsellor at law in his argument shall scandal the King or his government, this is a misdemeanour and contempt to the Court; for this he is to be indicted fined and imprisoned 5;' and a barrister was indicted and fined for saying a Baron of the Exchequer was a judge de gratia. In a case referred to in Dyer's Reports 7, a prisoner condemned for felony at the Salisbury assizes in 1631 threw a brickbat at the judge which narrowly missed. An indictment was immediately drawn by the Attorney-General, and the prisoner's right hand was cut off and fixed to the gibbet on which he was hanged in the presence of the Court. Here the cutting off the hand was to punish the contempt of which he had been convicted; the hanging must have been the sentence upon the previous conviction of felony.

8

One other early case remains to be mentioned, viz. the alleged committal of Prince Henry of Monmouth by Chief Justice Gascoign, of which no record or authoritative report has been discovered. The argument for the truth of the story has been elaborately stated by Lord Campbell and its correctness was assumed by Lord Selborne C. in Watt v. Ligertwood. On the other side the result of Mr. SollyFlood's researches has been stated even more elaborately in the article referred to above, and his conclusion that the story is a myth seems to be unanswerable 10.

1 Dyer, 188 (10).

2 Carus' case (1595), Owen 120.
Cro. Car. 503.

3 Cited in Oldfield's case (1611), 12 Rep. 71. Fullers' case (1609) 12 Rep. 41.

7 188 b, note.

9

(1874) L. R. 2 H. L. Sc. at p. 367 n.

Cited by Siderfin, Pt. i. p. 271.

8 Lives of the Chief Justices, i. 125.

10 Trans. Royal Hist. Soc., vol. iii. N. S., p. 47. See also Stubbs, Const. Hist.,

iii. 78, and Dict. Nat. Biog., xxi. 46; xxvi. 46. But see contra Wylie, Hist. Eng.