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arrears and damages before judgment, 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 4 Geo. II. c. 28. (which permits landlords who have a right of re-entry for non-payment for 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 cessavit: 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 same remedy is, in substance, adopted by statute 11Geo.2. c.19. §16., which enacts that where any tenant at rack-rent [or at a rent full three-fourths of the yearly value] 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. (1) 5. There is also another very effectual remedy, which takes place when the tenant upon a writ of assise for rent, or on a replevin, disowns or disclaims his tenure, whereby the lord loses his verdict; in which case the lord may have 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 disclaimer'. 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 [234] expressly to be met with in the feodal constitutions m "sallus, qui abnegavit feudum ejusve conditionem, exspoli"abitur."

i 2 Inst. 401.460.

* See pag.206.

Finch. L. 270,271.

m Feud. 1.2. t. 26.

m:

(1) By the 57 Geo.3. c.52., the provisions of this section are extended to cases where only half a year's rent is in arrear, and where the premises are held under any demise or agreement, either written or verbal, and with or without reservation of a right of re-entry in case of non-payment of rent.

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, 1. The writ of ne injuste 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; (2) 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 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 2. (3) 2. The writ of mesne, de medio; which is also in the nature of a writ of right, and lies, when upon a subinfeudation the mesne, 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 shall 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 mesnalty, and the tenant shall hold immediately of the lord paramount himself". (4)

(2) Ld. Coke (2 Inst. p. 21.) expressly denies this, and cites the writ from Glanville, and says it is mentioned in the Mirror.

(3) But he will still be bound by his own payment during his own life in an avowry, he must therefore seek his remedy by an action on c. 10. of Magna Carta above cited. 2. Inst. 21.

(4) "By the same services as the mesne holdeth by." 2Inst. 374.

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 (5): 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 secta 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 secta ad molendinum", commanding the defendant to do his suit at that mill, quam ad illud facere debet, et solet, 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 *. In like manner, and for like reasons, the register will inform us, that a man may have a writ of secta ad furnum, secta ad torrale, et ad omnia alia hujusmodi; 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.

w F. N. B. 123.

* Co. Entr. 641.

y fol. 153.

(5) The secta ad molendinum, &c. may be due by tenure, as well as by custom. Drake v. Wiglesworth, Willes. Rep. 656.; and where that is the case, the lord may distrein as in other cases of subtraction. Registr.153.

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 shall consider five sorts of this injury; viz. 1. 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, of seizing waifs or estrays, or (in short) 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 free-warren; or refuses to pay me the accustomed toll; or hinders me from seizing the waif or estray, whereby it escapes or is carried out of my liberty; in every case of this kind, all which it is impossible here to recite or 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, as the law has given no other writ, he is therefore entitled to sue for damages by a special action on [ 237 ] the case: or, in case of toll, may take a distress if he pleases.

II. 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 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 same inconvenience. But the lord of the soil may (by custom or prescription, but not without) put a stranger's cattle into the common; and also, by a like prescription for common appurtenant, cattle that are not commonable may be put into the common. The lord, also, of the soil may justify making burrows therein, and putting in rabbits, so as they do not increase to so large a number as totally to destroy the common. But in general, in case 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 distrein them damage-feasant': 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 soil only, for the entry and trespass committed. (1)

(1) The passage referred to in the Reports is this:-"If the trespass be so small that the commoner has not any loss, but sufficient in ample manner remains for him, no action lies for it." Mr. Serjeant Williams observes that this must be understood with some restriction. Undoubtedly if cattle escape into the common, and are driven out by the owner as soon as he has notice, though the lord may have an action of trespass for the injury to his soil, the commoner cannot bring an action upon the case, for this seems to fall directly within the rule. But if cattle are permitted to depasture the common, whether they are a stranger's, or the supernumerary cattle of a commoner, whether they are driven or escape there, a commoner may have an action upon the case, in which it does not seem necessary for him to prove any specific injury sustained. The consumption of the grass by the other cattle, is of itself a diminution of the right and profit of the commoner, and considered as a sufficient proof of the damage alleged in the declaration, for if the other cattle had not been there, the commoner's cattle might have eaten every blade of grass which was consumed by the other. Besides the law considers that the

right