« PreviousContinue »
praedial labours, or (which is inftar omnium) in money, which will provide all the rest; all which are comprized under the one general name of reditus, return, or rent. And the subtraction or non-observance of any of these conditions, by neglecting to swear fealty, to do suit of court, or to render the rent or service reserved, is an injury to the freehold of the lord, by diminishing and depreciating the value of his seignory.
The general remedy for all these is by distress; and it is the only remedy at the common law for the two first of them. The nature of distresses, their incidents and consequences, we have before more than once explained a : it may here suffice to remember, that they are a taking of beasts, or other personal property, by way of pledge to enforce the performance of something due from the party distreined upon. And for the most part it is provided that distresses be reasonable and moderate ; but, in the case of distress for fealty or suit of court, no distress can be unreasonable, immoderate, or too large b: for this is the only remedy to which the party aggrieved is entitled, and therefore it ought to be such as is sufficiently compulsory; and, be it of what value it will, there is no harm done, especially as it cannot be sold 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 distress infinite ; which is also used for some other purposes, as in summoning jurors, and the like.
OTHER remedies for subtraction of rents or services are, 1. By action of debt, for the breach of this express contract, of which enough has been formerly said. This is the most 'usual remedy, when recourse is had to any action at all for the recovery of pecuniary rents, to which species of render almost all free services are now reduced, since the abolition of the military tenures. But for a freehold rent, reserved on · See page 6, 148.
» Finch. L. 285. VOL. III.
a lease for life, &c. no action of debt lay by the common law, during the continuance of the freehold out of which it issueds; for the law would not suffer a real injury to be remedied by an action that was merely personal. However, by the statutes 8 Am. c. 14. and 5 Geo. III. c. 17. actions of debt may now be brought at any time to recover such freehold rents. 2. An atlise of mort d'ancestor or novel di Teisin will lie of rents as well as of landsd; if the lord, for the sake of trying the poffeffory right, will make it his election to suppose himself ousted or dilleised 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 progress, are entirely disused, though not formally abolished by law. Of this fpecies however is, 3. The writ de consuetudinibus et fervitiis, which lies for the lord against his tenant, who withholds from him the rents and services due by custom, or tenure, for his lande. This compels a specific payment or performance of the rent or service; and there are also others, whereby the lord shall recover the land itself in lieu of the duty withheld. As, 4. The writ of ceffavit : which lies by the statutes of Glocester, 6 Edw. I. c. 4. and of Wettı. 2. 13 Edw. I. C. 21 & 41. when a man who holds lands of a lord by rent or other services, neglects or ceufes to perform his services for two years together; or where a religious house hath lands given it, on condition of performing fome certain spiritual fervice, as reading prayers or giving alıms, and neglects it; in either of which cases, if the ceffer or neglcct have contimed for two years, the loril or donor and his heirs shall have a writ of ceifivit to recover the land itself, eo giuod tenens in fariendis fervitiis per biennium jam 1s/7.Vtf. In like manner, by the civil law, if a tenant who held lands upon payment of rent or services, or “jure emphyteutico,” neglected to pay or perforint them per totum triennium, he might be eje ted from such enphyteutic lands. But by the statute of Glocetter, the cavit does not lie for lands let upon fee-farm rents, une Ro!!, Ábr. 595.
!!W.208. o F. N. B. 1951
& Code 4. 65. 2. clic, 151.
less they have lain freíh and uncultivated for two years, and there be not sufficient distress upon the premises; or unless the tenant hath so enclosed the land, that the lord cannot come upon it to distrein h. For the law prefers the simple and ordinary remedies, by distress or by the actions just now mentioned, to this extraordinary one of forfeiture for a refavit ; and therefore the same statute of Glocefter has provided farther, that upon tender of arrears and damages before judge ment, and giving security for the future performance of the services, the process shall be at an end, and the tenant shall retain his land; to which the statute of Westm. 2. conforms, so far as may stand with convenience and reason of lawi. It is easy to observe, that the statute k 4 Geo. II. c. 28. (which permits landlords who have a right of re-entry for non-payment of rent, to serve an ejectment on their tenants, when half a year's rent is due, and there is no sufficient distress on the premises) is in some measure copied from the antient writ of ceffavit: especially as it may be satisfied and put an end to in a similar manner, by tender of the rent and costs within fix months after. And the same remedy is, in substance, adopted by statute ni Geo. II. c. 19. § 16. which enacts, that where any tenant at rack-rent shall be one year's rent in arrear, and shall desert the demised premises, leaving the same uncultivated or unoccupied, so that no sufficient distress can be had: two justices of the peace (after notice affixed on the premises for fourteen days without effect) may give the landlord possession thereof, and thenceforth the lease shall be void. 5. There is also another very effectual remedy, which takes place when the tenant upon a writ of affise for rent, or on a replevin, disowns or disclaims his tenure, whereby the lord Jofes his verdiet: in which case the lord may have a writ of right, fur difilaimer, grounded on this denial of tenure; and shall, upon proof of the tenure, recover back the land itself so holden, as a punishment to the tenant for such his false difclaimer'. This piece of retaliating justice, whereby the te. nant who endeavours to defraud his lord is himself deprived of the estate, as it evidently proceeds upon feodal principles,
F. N. B. 209. 2 Inst. 298. * See page 206. i 2 lait. 401.460.
| Finch. L. 270, 271.
so it is expressly to be met with in the feodal constitutions m: “ vafallus, qui abnegavit feudum ejusve conditionem, exfpo“ liabitur."
AND, as on the one hand the antient law provided these several remedies to obviate the knavery and punish the ingratitude of the tenant, fo on the other hand it was equally careful to redress the oppression of the lord; by furnishing, 1. The writ of ne injufte vexes"; which is an antient writ founded on that chapter o of magna carta, which prohibits distresses for greater services than are really due to the lord; being itself of the prohibitory kind, and yet in the nature of a writ of right P. It lies, where the tenant in fee-simple and his ancestors have held of the lord by certain services; and the lord hath obtained seisin of more or greater services, by the inadvertent payment or performance of them by the te. nant himself. Here the tenant cannot in an avowry avoid the lord's poffeffory right, because of the seisin given by his own hands; but is driven to this writ, to devest the lord's poffeffion, 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 such feilin of the lord, obtained from the payment of his ancestors, by plea to an avowry in replevin... 2. The writ of miesne de medio ; which is also in the nature of a writ of right', and lies, when upon a subinfeudation the mesue, or middlelord', suffers his under-tenant, or tenant paravail, to be distreined upon by the lord paramount, for the rent due to him from the meine lord'. And in such case the tenant shall have judge ment to be acquitted (or indemnified) by the mesne lord; and if he makes default therein, or does not appear originally to the tenant's writ, he shall be forejudged of his mesnalty, and the tenant shall hold immediately of the lord paramount himself u.
m Feud. 1. 2. 1. 26.
II. THUS II. Thus far of the remedies for subtraction of rents or other services due by tenure. There are also other services, due by antient custom and prescription only. Such is that of doing suit to another's mill: where the persons, resident in a particular place, by usage 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 suit, (their feeta, a sequendo) 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 such 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 shall 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 shew good cause to the contrary: in which action the validity of the prescription may be tried, and if it be found for the owner, he shall recover damages against the defendant x. In like manner, and for like reasons, the register y will inform us, that a man may have a writ of feita ad furnum, feéta ad torrale, et ad omnia alia hujufmodi ; for suit due to his furnum, his public oven or bakehouse; or to his torrale, his kiln, or malthouse; when a person's ancestors have erected a convenience of that sort for 'the benefit of the neighbourhood, upon an agreement (proved by immemorial custom) that all the inhabitants should use and resort to it, when erected. But besides these special remedies for subtractions, to compel the specific performance of the service due by custom : an action on the case will also lie for all of them, to repair the party injured in damages. And thus much for the injury of subtraction,