lefs they have lain fresh and uncultivated for two years, and there be not fufficient diftrefs upon the premifes; or unless the tenant hath so enclosed the land, that the lord cannot come upon it to distrein h. For the law prefers the fimple and ordinary remedies, by diftrefs 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 procefs 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 reason of lawi. 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 meafure copied from the antient writ of cellavit: efpecially as it may be fatisfied and put an end to in a fimilar manner, by tender of the rent and cofts within fix months after. And the fame remedy is, in fubftance, adopted by ftatute 11 Geo. II. c. 19. § 16. which enacts, that where any tenant at rack-rent shall be one year's rent in arrear, and shall 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 fhall 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 difclaimer, grounded on this denial of tenure; and fhall, upon proof of the tenure, recover back the land itfelf 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 himself deprived of the estate, as it evidently proceeds upon feodal principles, b F. N. B. 209. 2 Inft. 298. k See page 206. 1 2 inft. 401. 460.

I Finch. L. 270, 271.

Book III. fo it is exprefsly to be met with in the feodal conftitutions": "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 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. 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 seisin 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 fervices, and reducing them to their proper fstandard. 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 meine lord'. And in fuch cafe the tenant fhall 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 fhall be forejudged of his mesnalty, and the tenant fhall hold immediately of the lord paramount himfelf".

II. THUS far of the remedies for fubtraction 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 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 fecta, 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 such mill by the ancestors of the owner for the convenience of the inhabitants, on condition, that when erected, they fhould 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 fuit at that mill, quam ad illud facere debet, et folet, or fhew good caufe to the contrary: in which action the validity of the prefcription may be tried, and if it be found for the owner, he fhall recover damages against the defendant *. In like manner, and for like reasons, the registery will inform us, that a man may have a writ of fecta 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 malthoufe; 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 these special remedies for fubtractions, to compel the specific performance of the service due by cuftom: an action on the cafe will also lie for all of them, to repair the party injured in damages. And thus much for the injury of subtraction.

F. N. B. 123.

* Co. Entr. 461.

y fol. 153.

CHAPTER THE SIXTEENTH.

OF DISTURBANCE.

THE

HE fixth and laft fpecies of real injuries is that of difturbance; which is ufually a wrong done to fome incorporeal hereditament, by hindering or difquieting the owners in their regular and lawful enjoyment of it. I shall confider five forts of this injury; viz. 1. Disturbance of franchifes. 2. Diflurbance of common. 3. Disturbance of ways. 4. Disturbance of tenure. 5. Disturbance of patronage.

1. DISTURBANCE of franchifes happens, when a man has the franchise of holding a court-leet, of keeping a fair or market, of free-warren, of taking toll, of feifing waifs or eftrays, or (in fhort) any other fpecies of franchife whatfoever; and he is difturbed or incommoded in the lawful exercife thereof. As if another by diftrefs, menaces, or perfuafions, prevails upon the fuitors not to appear at my court; or obftructs the paffage to my fair or market; or hunts in my freewarren; or refufes to pay me the accustomed toll; or hinders me from feifing the waif or eftray, whereby it efcapes. or is carried out of my liberty: in every cafe of this kind, all which it is impoffible here to recite or fuggeft, there is an injury done to the legal owner; his property is damnified; and the profits arifing from fuch his franchise are diminished. To remedy which, as the law has given no other writ, he is

a Finch. L. 187.

therefore

therefore entitled to fue for damages by a fpecial action on the cafe: or, in cafe of toll, may take a distress if he pleases".

II. THE disturbance of common comes next to be confidered; where any act is done, by which the right of another to his common is incommoded or `diminished. This may happen, in the first place, where one who hath no right of common, puts his cattle into the land; and thereby robs 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 the lord of the foil may (by custom or prescription, but not without) put a ftranger's cattle into the common; and alfo, by a like prefcription for common appurtenant, cattle that are not commonable may be put into the common. The lord alfo of the foil may justify making burrows therein, and putting in rabbets, fo as they do not encrease to so large a number as totally to deftroy the common. But in general, in cafe the beafts of a stranger, or the uncommonable cattle of a commoner, be found upon the land, the lord or any of the commoners may diftrein them damage-feafant: or the commoner may bring an action on the cafe to recover damages, provided the injury done be any thing confiderable fo that he may lay his action with a per quod, or allege that thereby he was deprived of his common. But for a trivial trefpafs the commoner has no action; but the lord of the foil only for the entry and trefpafs committed .

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

b Cro. Eliz. 558. c1 Roll. Abr. 396.

d Co. Litt. 122.

e Cro. Eliz. 876. Cro. Jac. 195. Luw. 108. f 9 Rep. 112.

g Ibid.

$ 4

ing