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less they have lain fresh 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 com* upon it to distrein •>. 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 teffavit; and therefore the fame statute of Glocester has provided farther, that upon tender of arrears and damages beforejudgjnent, 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 law'. 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 cejpivit: especially as it may be satisfied and put an end to in a similar manner, by tender of the rent and costs within six months after.. And the fame remedy is, in substance, adopted by statute 11 Geo. II. c. 19. § 16. which enacts, that where any tenant at rack-rent stiall be one year's rent in arrear, and shall desert the demised premises, leaving the fame 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 stiall 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 Joses his verdict: in which case the lord may have a writ of right, sur disclaimer, 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 disclaimer1. This piece of retaliating justice, whereby the tenant who endeavours to defraud his lord is himself deprived of the estate, as it evidently proceeds upon feodal principles, so it is expressly to be met with in the feodal constitutions H: ** vasallus, qui abnegavit feudum ejusve conditionem, exspo"liabitttr."

!> F. N. B. 209. 2 Inst. 298. k See page 206.

1 2 Last. 4.01. 460. 'F'uicb. L. 270, 271.

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And, as on the one hand the antient law provided these several remedies to obviate the knavery and punish the ingratitude of the tenant, so on the other hand it was equally careful to redress the oppression of the lord; by furnishing, i. The writ of tie injtifle vexes n\ which is an antient writ founded on that chapter ° 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 os rights. 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 tenant himself. Here the tenant cannot in an avowry avoid the lord's possessory right, because of the seisin given by his own hands; but is driven to this writ, to devest the lord's possession, 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 seisin of the lord, obtained from the payment of his ancestors, by plea to an avowry in replevin"1. 2. The writ of mesne de medio; which is also in the nature of a writ of right', and lies, when uponafubinseudationtheww/w, or middle lord', suffers his under-tenant, or tenant paravail, to be distreined upon by the lord paramount, for the rent due to him from the mesne lord'. And in such case the tenant (hall have judgment 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 melnaltv, and the tenant fliali hold immediately of the lord paramount himself n.

m Feud. 1.1. t. 25. » Booth. 136.

n F. N. B. 10. 'Sec book II. ch. 5. page 59, 60.

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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, (theirsecla, 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 mould all grind their corn there only. And for this injury the owner shall have a writ de setla ad molendinumv, commanding the defendant to do his suit at that mill, quant ad illud facere debet, et solct, or shew good cause to the contrary: in which action the validity os the prescription may be tried, and if it be found for the owner, he shall recover damages against the defendantx. In like manner, and for like reasons, the register * will inform us, that a man may have a writ oisecta adsurnum, secla ad torrale, et adont' tiia alia hujusmodi; for suit due to hissurnum, 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 os 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.

*• F. M. B. 1*3. » C->. Entr. 461. T ML 15J.

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CHAPTER THE SIXTEENTH.

Of DISTURBANCE.

THE sixth and last species of real injuries is that of disturbance; which is usually a wrong done to some incorporeal hereditament, by hindering or disquieting the owners in their regular and lawful enjoyment of it". I (hall consider five sorts of this injury; viz. I. Disturbance of franchises. 2. Disturbance of common. 3. Disturbance of -ways. 4. Disturbance of tenure. 5. Disturbance of patronage.

I. Disturbance of franchises happens, when a man has the franchise of holding a court-leet, of keeping a fair or market, of free-warren, of taking toll, os seising waifs or estrays, or (in stiort) any other species of franchise whatsoever; and he is disturbed or incommoded in the lawful exercise thereof. As if another by distress, menaces, or persuasions, prevails upon the suitors not to appear at my court; or obstructs the passage to my fair or market; or hunts in my freewarren; or refuses to pay me the accustomed toll; or hinders me from seising the waif or estray, whereby it escapes or is carried out of my liberty: in every cafe of tbis kind, all which it is impossible here to recite cr suggest, there is an injury done to the legal owner; his property is damnified; and the profits arising from such his franchise are diminished. To remedy which, os the law has given no other writ, he is

» Finch. L. 187.

therefore therefore entitled to sue for damages by a special action on the case: or, in case of toll, may take a distress if he pleases \

If. The disturbance of common comes next to be considered; where any act is done, by which the right of another to his common is incommoded or "diminilhed. This may happen, in the first place, where one who hath no right of common, puts his cattle into the land; and thereby Tobs the cattle of the commoners of their respective shares of the pasture. Or if one, who hath a right of common, puts in cattle which are not commonable, as hogs and goats; which amounts to the fame inconvenience. But tlie lord of the foil may (by custom or prescription, but not without) put a stranger's cattle into the common0; and also, by a like prescription for common appurtenant, cattle that are not commonable may be put into the common d. The lord also of the soil may justify making burrows therein, and putting in rabbets, so as they do not encrease to so large a number as totally to destroy the common e. But in general, in cafe the beasts of a stranger, or the uncommonable cattle of a commoner, be found upon the land, the lord or any of the commoners may distreiu them damage-feasantf: or the commoner may bring an action on the case to recover damages, provided the injury done be any thing considerable: so that he may lay his action with a per quod, or allege that thereby he was deprived of his common. But for a trivial trespass the commoner has no action; but the lord of the foil only for the entry and trespass committed g.

Another disturbance of common is by surcharging it; or putting more cattle therein than the pasture and herbage will sustain, or the party hath a right to do. In this cafe he that surcharges does an injury to the rest of the owners, by depriving them of their respective portions, or at least contract

t>Cro. Eliz. 558." * Cro. Eliz. 876. Cro.*Jac. 155 Lutw. 10S.

c 1 Roll. Abr 396. '9 Rep. 112.

* Co. Lilt. m. t Ibid.

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