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231 praedial labours, or (which is inftar omnium) in money, which will provide all the reft; all which are comprized under the one general name of reditus, return, or rent. And the fubtraction or non-observance of any of thefe conditions, by neglecting to swear fealty, to do suit of court, or to ren der the rent or fervice referved, is an injury to the freehold of the lord, by diminishing and depreciating the value of his feignory.

THE general remedy for all these is by diftrefs; and it is the only remedy at the common law for the two first of them. The nature of diftreffes, their incidents and confequences, we have before more than once explained: it may here fuffice to remember, that they are a taking of beasts, or other personal property, by way of pledge to enforce the performance of fomething due from the party diftreined upon. And for the most part it is provided that diftreffes be reasonable and moderate; but, in the cafe of distress for fealty or fuit of court, no diftrefs can be unreasonable, immoderate, or too large for this is the only remedy to which the party aggrieved is entitled, and therefore it ought to be fuch as is fufficiently compulsory; and, be it of what value it will, there is no harm done, especially as it cannot be fold or made away with, but must be restored immediately on fatisfaction made. A distress of this nature, that has no bounds with regard to it's quantity, and may be repeated from time to time, until the stubbornness of the party is conquered, is called a diftrefs infinite; which is alfo ufed for fome other purposes, as in fummoning jurors, and the like.

OTHER remedies for fubtraction of rents or fervices are, 1. By action of debt, for the breach of this exprefs contract, of which enough has been formerly faid. This is the most ufual remedy, when recourfe is had to any action at all for the recovery of pecuniary rents, to which fpecies of render almost all free fervices are now reduced, fince the abolition of the military tenures. But for a freehold rent, referved on Finch. L. 285.

a See page 6, 148. VOL. III.

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a leafe for life, &c. no action of debt lay by the common law, during the continuance of the freehold out of which it iffued: for the law would not suffer a real injury to be remedied by an action that was merely perfonal. However, by the statutes 8 Ann. c. 14. and 5 Geo. HI. c. 17. actions of debt may now be brought at any time to recover fuch freehold rents. 2. An aflife of mort d'ancestor or novel diffeifin will lie of rents as well as of lands; if the lord, for the fake of trying the poffeffory right, will make it his election to fuppofe himfelf oufted or diffeifed thereof. This is now feldom heard of; and all other real actions to recover rent, being in the nature of writs of right, and therefore more dilatory in their progrefs, are entirely difufed, though not formally abolished by law. Of this fpecies however is, 3. The writ de confuetudinibus et fervitiis, which lies for the lord against his tenant, who withholds from him the rents and fervices due by cuftom, or tenure, for his land. This compels a fpecific payment or performance of the rent or fervice; and there are alfo others, whereby the lord fhall recover the land itself in lieu of the duty withheld. As, 4. The writ of ceffavit: which lies by the ftatutes of Glocefter, 6 Edw. I. c. 4. and of Weftm. 2. 13 Edw. I. c. 21 & 41. when a man who holds lands of a lord by rent or other fervices, neglects or ceafes to perform his fervices for two years together; or where a religious houfe hath lands given it, on condition of performing fome certain spirituál fervice, as reading prayers or giving alms, and neglects it; in either of which cafes, if the ceffer or neglect have continued for two years, the lord or donor and his heirs fhall have a writ of ceffavit to recover the land itself, eo quod tenens in faciendis fervitiis per biennium jam ceffevit. In like manner, by the civil law, if a tenant who held lands upon payment of rent or fervices, or "jure emphyteutico," neglected to pay or perform them per totum triennium, he might be ejected from fuch emphyteutic lands®. But by the ftatute of Glocefter, the cofacit does not lie for lands let upon fee-farm rents, un

1 Roll. Abr. 595.

a F. N. B. 195.

e Ibid. 151.

f Ibid. 208.
& Cod. 4. 65.2.

lefs they have lain fresh and uncultivated for two years, and there be not fufficient diftrefs upon the premises; or unless the tenant hath fo enclosed the land, that the lord cannot come upon it to distrein h. For the law prefers the fimple and ordinary remedies, by distress or by the actions just now mentioned, to this extraordinary one of forfeiture for a ceffavit; and therefore the fame ftatute of Glocefter has provided farther, that upon tender of arrears and damages before judgment, and giving fecurity for the future performance of the fervices, the process fhall be at an end, and the tenant shall retain his land; to which the ftatute of Weftm. 2. conforms, fo far as may ftand with convenience and reafon of law i. It is easy to obferve, that the statute * 4 Geo. II. c. 28. (which permits landlords who have a right of re-entry for non-payment of rent, to ferve an ejectment on their tenants, when half a year's rent is due, and there is no fufficient diftrefs on the premises) is in fome measure copied from the antient writ of ceffavit: efpecially as it may be satisfied and put an end to in a fimilar manner, by tender of the rent and costs within fix months after. And the fame remedy is, in fubstance, adopted by ftatute 11 Geo. II. c. 19. § 16. which enacts, that where any tenant at rack-rent fhall be one year's rent in arrear, and fhall defert the demifed premifes, leaving the fame uncultivated or unoccupied, fo that no fufficient diftrefs can be had: two justices of the peace (after notice affixed on the premises for fourteen days without effect) may give the landlord poffeffion thereof, and thenceforth the leafe shall be void. 5. There is also another very effectual remedy, which takes place when the tenant upon a writ of affife for rent, or on a replevin, difowns or disclaims his tenure, whereby the lord lofes his verdict: in which cafe the lord may have a writ of right, fur disclaimer, grounded on this denial of tenure; and fhall, upon proof of the tenure, recover back the land itself fo holden, as a punishment to the tenant for fuch his falfe difclaimer. This piece of retaliating juftice, whereby the tenant who endeavours to defraud his lord is himfelf deprived of the estate, as it evidently proceeds upon feodal principles, h F. N. B. 209. 2 Inft. 298. k See page 206. i 2 Inft. 401. 460.

I Finch. L. 270, 271.

fo it is exprefsly to be met with in the feodal constitutions": " vafallus, qui abnegavit feudum ejufve conditionem, exfps"liabitur."

AND, as on the one hand the antient law provided these feveral remedies to obviate the knavery and punish the ingratitude of the tenant, fo on the other hand it was equally careful to redress the oppreffion of the lord; by furnishing, 1. The writ of ne injufte vexes"; which is an antient writ founded on that chapter of magna carta, which prohibits diftreffes for greater fervices than are really due to the lord; being itself of the prohibitory kind, and yet in the nature of a writ of right. It lies, where the tenant in fee-fimple and his ancestors have held of the lord by certain fervices; and the lord hath obtained feifin of more or greater fervices, by the inadvertent payment or performance of them by the tenant himself. Here the tenant cannot in an avowry avoid the lord's poffeffory right, because of the seifin given by his own hands; but is driven to this writ, to deveft the lord's poffefsion, and establish the mere right of property, by ascertaining the services, and reducing them to their proper standard. But this writ does not lie for tenant in tail; for he may avoid fuch feifin of the lord, obtained from the payment of his ancestors, by plea to an avowry in replevin. 2. The writ of mefne de medio; which is alfo in the nature of a writ of right', and lies, when upon a fubinfeudation the mefne, or middle lord', fuffers his under-tenant, or tenant paravail, to be distreined upon by the lord paramount, for the rent due to him from the mefne lord. And in such case the tenant shall have judgment to be acquitted (or indemnified) by the mefne lord; and if he makes default therein, or does not appear originally to the tenant's writ, he thall be forejudged of his mefnalty, and the tenant shall hold immediately of the lord paramount himfelf".

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II. THUS far of the remedies for fubtraction of rents or other services due by tenure. There are also other fervices, due by antient custom and prescription only. Such is that of doing fuit to another's mill: where the perfons, refident in a particular place, by ufage time out of mind have been accustomed to grind their corn at a certain mill; and afterwards any of them go to another mill, and withdraw their fuit, (their fecla, a fequendo) from the antient mill. This is not only a damage, but an injury, to the owner; because this prescription might have a very reasonable foundation, viz. upon the erection of fuch mill by the ancestors of the owner for the convenience of the inhabitants, on condition, that when erected, they should all grind their corn there only. And for this injury the owner fhall have a writ de fecta ad molendinum, commanding the defendant to do his suit at that mill, quam ad illud facere debet, et folet, or fhew good cause to the contrary: in which action the validity of the prefcription may be tried, and if it be found for the owner, he shall recover damages against the defendant *. In like manner, and for like reafons, the register y will inform us, that a man may have a writ of secta ad furnum, fecta ad torrale, et ad omnia alia hujufmodi; for fuit due to his furnum, his public oven or bakehouse; or to his torrale, his kiln, or malthouse; when a perfon's ancestors have erected a convenience of that fort for the benefit of the neighbourhood, upon an agreement (proved by immemorial cuftom) that all the inhabitants should use and refort to it, when erected. But befides thefe fpecial remedies for fubtractions, to compel the specific performance of the fervice due by cuftom: an action on the cafe will alfo lie for all of them, to repair the party injured in damages. And thus much for the injury of fubtraction.

F. N. B. 123.

* Cɔ. Entr. 461.

y fol. 153.

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