lord, (s) 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. (1) And in such case the tenant shall have judgment to be acquitted (or in. demnified) 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 him. self. (u)

[235] II. Thus far of the remedies for subtraction of rents or other services due by tenure. There are also other services due by ancient 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 secta, a sequendo) from the ancient 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, (w) commanding the de. fendant 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. (a)3 In like manner, and for like reasons, the register (y) will inform us, that a man may have a writ of secta ad fur. num, 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 malt. house; when a person's ancestors have erected a convenience of that sort for the benefit of the neighbourhood, upon an agreement (proved by imme. morial 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.

CHAP. XVI.

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. (a) I shall consider five sorts of this injury; viz. 1. Disturbance of franchises.

See Book II. ch. 5. pag. 59, 60,

F. N. B. 123.

r Co. Entr. 461.

1 F. N. B. 135.
y fol. 153.

u 2 Inst. 874.
a Finch. L. 187.

(3) The modern form of proceeding is by action on the case. See the precedent and notes,

2 Saund. 112.

(4) This is now the only action in use for most of the injuries specified in this chapter; the ancient appropriate writs having become obsolete. See further, 2 Saund. 113. b.

(1) See in general, Com. Dig. Action upon the Case for a Disturbance, and Quare Impedit, D.

2. Disturbance of common. 3. Disturbance of ways. 4. Disturbance of te. nure. 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 spe- [237] cial action on the case: or, in case of toll, may take a distress if he pleases. (b)

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; (c) 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 rabbits, so as they do not increase to so large a number as totally to destroy the common. (e) 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: (ƒ) 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. (g)*

à Co. Litt. 122.

b Cro. Eliz. 558.

c 1 Roll. Abr. 396. e Cro. Eliz. 876. Cro. Jac. 195. Lutw. 108.

f 9 Rep. 112.

g Ibid.

(2) As to markets and actions for injuries to the same, see in general 2 Chitty Com. L. 142 to 162.; Bac. Ab. Fairs and Markets; Com. Dig. Markets; and 2 Saund. index, tit. Markets, (3) As to rights of common in general, see ante, 2 Book, 32 to 55.

(4) If cattle escape into the common, and are driven out by the owner as soon as he has notice, though the lord may have his action of trespass, yet the commoner cannot bring his action upon the case, because sufficient feeding still remains for him. But if cattle are permitted to depasture the common, whether they belong to a stranger, or are the supernumerary cattle of a commoner, an action lies; and it is not necessary to prove specific injury, for the right of the commoner is injured by such an act, and if permitted, the wrongdoer might gain a right by repeated acts of encroachment, 2 Bla. Rep. 1233. 4 T. R. 71. 2 East, 154. I Saund. 346. b. And where A., being possessed of a portion of a lammas field over which a right of common existed part of the year, took down the customary post and rail fence, containing gaps through which the commoner's cattle might pass, and built a wall with a single doorway, at which they might enter and return, it was held that this was a disturbance of the common right, and an action was maintainable, though the abridgment of the right was inconsiderable, 1 M'Cleland's Rep. 373. One farthing damages will sustain the verdict in such case. Ib. and 2 East, 154. It has been held, that claim of common for all the plaintiff's cattle levant and couchant on his land, was supported

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 case he that surcharges does an injury to the rest of

the owners, by depriving them of their respective portions, or at least [238] contracting them into a smaller compass. This injury by surcharg

ing can properly speaking only happen, where the common is appendant or appurtenant, (h) and of course limitable by law; or where, when in gross, it is expressly limited and certain; for where a man hath common in gross, sans nombre or without stint, he cannot be a surcharger. However, even where a man is said to have common without stint, still there must be left sufficient for the lord's own beasts; (i) for the law will not suppose that, at the original grant of the common, the lord meant to exclude himself."

The usual remedies, for surcharging the common, are either by distrein. ing so many of the beasts as are above the number allowed, or else by an action of trespass, both which may be had by the lord: or lastly, by a special action on the case for damages; in which any commoner may be plaintiff. (5) But the ancient and most effectual method of proceeding is by writ of admeasurement of pasture. This lies either where a common appurtenant or in gross is certain as to number, or where a man has common appendant or appurtenant to his land, the quantity of which common has never yet been ascertained. In either of these cases, as well the lord, as any of the commoners, is entitled to this writ of admeasurement; which is one of those writs that are called vicontiel, (k) being directed to the sheriff (vicecomiti), and not to be returned to any superior court, till finally executed by him. It recites a complaint, that the defendant hath surcharged, superoneravit, the common: and therefore commands the sheriff to admeasure and apportion it; that the defendant may not have more than belongs to him, and that the plaintiff may have his rightful share. And upon this suit all the commoners shall be admeasured, as well those who have not, as those who have surcharged the common; as well the plaintiff as the defendant. (1) The

execution of this writ must be by a jury of twelve men, who are [239] upon their oaths to ascertain, under the superintendance of the sheriff, what and how many cattle each commoner is entitled to feed. And the rule for this admeasurement is generally understood to be, that the

h See Book II. ch. 3.

k 2 Inst. 369. Finch. L. 314.

i1 Roll. Abr. 399.

j Freem. 273.

1 F. N. B. 125.

by evidence of a custom for all the occupiers of a large common field to turn cattle into the whole field when the corn was taken off, the number of cattle being regulated by the extent, and not the produce of each man's land in the field, although the cattle were not actually maintained on such land during the winter. 1 B. & A. 706. In an action for disturbance of common, where the plaintiff stated that he was possessed of a messuage and land, by reason whereof he was entitled to the right of common, and it appeared on the trial that he was possessed of land only, it was held that the allegation was divisible, and the plaintiff entitled to damages pro tanto. 2 B. & A. 360. See 15 East, 115. The declaration must in all cases allege, that the plaintiff thereby could not use his common in so ample a manner as he ought to have done. 9 Co. 113. a.

Chitty. (5) The modern doctrine upon this subject is somewhat different, for it is now held, that a prescription for a sole and several pasture, &c. in exclusion of the owner of the soil for the whole year, is good, 2 Lev. 2. Pollexf. 13. 1 Mod. 74. for it does not exclude the lord from all the profits of the soil, as he is entitled to the mines, trees, and quarries. And though a man cannot prescribe to have common eo nomine for the whole year in exclusion of the lord, 1 Lev. 268. 1 Vent. 395., still the lord may, by custom, be restrained to a qualified right of common during a part of the year. Yelv. 129. And it is said the lord may be restrained, together with the commoners, from using the common at all during a part of the year. 1 Saund. 353. n. (2) See also 2 H. Bl. 4. And it is said to have been clearly held, that the commoners may prescribe to have common in exclusion of the lord for a part of the year. 2 Roll. Abr. 267. L. pl. 1. Chitty.

commoner shall not turn more cattle upon the common, than are sufficient to manure and stock the land to which his right of common is annexed; or, as our ancient law expressed it, such cattle only as are levant and couchant upon his tenement; (m) which being a thing uncertain before admeasurement, has frequently, though erroneously, occasioned this unmeasured right of common to be called a common without stint or sans nombre; (n) a thing which, though possible in law, (o) does in fact very rarely exist."

If, after the admeasurement has thus ascertained the right, the same defendant surcharges the common again, the plaintiff may have a writ of se cond surcharge, de secunda superoneratione, which is given by the statute Westm. 2. 13 Edw. I. c. 8. and thereby the sheriff is directed to inquire by a jury, whether the defendant has in fact again surcharged the common contrary to the tenure of the last admeasurement: and if he has, he shall then forfeit to the king the supernumerary cattle put in, and also shall pay dama. ges to the plaintiff. (p) This process seems highly equitable: for the first offence is held to be committed through mere inadvertence, and therefore there are no damages or forfeiture on the first writ, which was only to ascertain the right which was disputed but the second offence is a wilful contempt and injustice; and therefore punished very properly with not only damages, but also forfeiture. And herein the right, being once settled, is never again disputed; but only the fact is tried, whether there be any second surcharge or no: which gives this neglected proceeding a great advantage over the modern method, by action on the case, wherein the quantum of common belonging to the defendant must be proved upon every fresh trial, for every repeated offence.

There is yet another disturbance of common, when the owner of the land, or other person, so encloses or otherwise obstructs it, that [240] the commoner is precluded from enjoying the benefit, to which he

is by law entitled. This may be done, either by erecting fences, or by driving the cattle off the land, or by ploughing up the soil of the common. (q) Or it may be done by erecting a warren therein, and stocking it with rabbits in such quantities, that they devour the whole herbage, and thereby destroy the common. For in such case, though the commoner may not destroy the rabbits, yet the law looks upon this as an injurious disturbance of his right, and has given him his remedy by action against the owner. (r)

m Bro. Abr. t. prescription. 28.
p F. N. B. 126. 2 Inst. 870.

n Hardr. 117.
q Cro. Eliz. 198.

o Lord Raym. 407.
r Cro. Jac. 195.

(6) The lord may distrain not only the cattle of a stranger, but also so many of a commoner's cattle as surcharge the common. 2 Bla. R. 818. Willes, 633. A commoner can only distrain the cattle of a stranger, 1 Roll. Ab. 320. 405. pl. 5. Yelv. 104. and not of the lord, 2 Buls. 117.; nor where a commoner overcharges the common, by putting in cattle that are not levant and couchant, can another commoner distrain the surplus, at least before admeasurement. 3 Wms. 287. 2 Lutw. 1238. 4 Burr. 2426. But where the right of common is limited to a certain number of cattle, without any relation to the quantity of land which the commoner possesses, and he puts in a greater number, perhaps another commoner may distrain the supernumerary cattle. 4 Burr. 2431. It seems clear that a claim of common pleaded by an inhabitant, as an inhabitant merely, is bad; it must be pleaded either in the name of a corporation for the benefit of the inhabitants, or in a que estate. 6 Co. 69. b. 4 T. R. 717. 1 Saund. 346. f. n. (g) But if the defendant be lord of a manor, or one who puts his cattle on the common with the lord's licence, the commoner cannot maintain an action, unless he has sustained a specific injury. For the lord is entitled to what remains of the grass, and therefore may consume it himself, or licence another to depasture it. 4 T. R. 73. 2 Mod. 6. Willes, 619. Chitty.

(7) It is the policy of the law not to allow commoners to abate, except only in few cases, for an action will best ascertain the just measure of the damage sustained. But if the lord erect a wall, gate, hedge, or fence round the common, to prevent the commoner's cattle from going into the common, the commoner may abate the erection, because it is inconsistent with the grant. 1 Burr. 259. 6 T. R. 485.

This kind of disturbance does indeed amount to a disseisin, and if the commoner chooses to consider it in that light, the law has given him an assise of novel disseisin, against the lord, to recover the possession of his common. (s) Or it has given a writ of quod permittat, against any stranger, as well as the owner of the land, in case of such a disturbance to the plaintiff as amounts to a total deprivation of his common; whereby the defen. dant shall be compelled to permit the plantiff to enjoy his common as he ought. (1) But if the commoner does not choose to bring a real action to recover seisin, or to try the right, he may (which is the easier and more usual way) bring an action on the case for his damages, instead of an assise or a quod permittat. (u)

There are cases indeed, in which the lord may enclose and abridge the common; for which, as they are no injury to any one, so no one is entitled to any remedy. For it is provided by the statute of Merton, 20 Hen. III. c. 4. that the lord may approve, that is, enclose and convert to the uses of husbandry (which is a melioration or approvement), any waste grounds, woods, or pastures, in which his tenants have common appen

dant to their estates; provided he leaves sufficient common to his [241] tenants, according to the proportion of their land. And this is

extremely reasonable: for it would be very hard if the lord, whose ancestors granted out these estates to which the commons are appendant, should be precluded from making what advantage he can of the rest of his manor; provided such advantage and improvement be no way derogatory from the former grants. The statute Westm. 2. 13 Edw. 1. c. 46. extends this liberty of approving, in like manner, against all others that have common appurtenant, or in gross, as well as against the tenant of the lord, who have their common appendant; and farther enacts, that no assise of novel-disseisin, for common, shall lie against a lord for erecting on the common any windmill, sheephouse, or other necessary buildings therein specified; which, sir Edward Coke says, (w) are only put as examples; and that any other necessary improvements may be made by the lord, though in reality they abridge the common, and make it less sufficient for the commoners. And lastly, by statute 29 Geo. II. c. 36. and 31 Geo. II. c. 41. it is particularly enacted, that any lords of wastes and commons, with the consent of the major part, in number and value, of the commoners, may enclose any part thereof, for the growth of timber and underwood."

AF. N. B. 179.

1 Finch. L. 275. F. N. B. 129.
w 2 Inst. 476.

" Cro. Jac. 195,

(8) See 2 Book p. 34. n.

(9) As the lord may approve, leaving a sufficiency of common, the commoner abates an erection at the peril of an action. A person seised in fee of the waste may approve, although he is not lord. 3 T. R. 445. But there can be no approvement against the tenants of a manor, who have a right to dig gravel in the wastes, and take estovers, 2 T. R. 391. nor against common of turbary. 1 Taunt. 435. And although the lord may approve against common of pasture, by 20 H. III. c. 4. 5 T. R. 411., yet there may be other rights of common against which he cannot approve. 6 T. R. 741. A custom for tenants to approve by the lord's consent, and by presentment of the homage, does not restrain the lord's right to approve. 2 T. R. 392. (n) The lord may, with consent of the homage, grant part of the soil for building, if the exercise of the right be immemorial. 5 T. R. 417. n. But a custom for the lord to grant leases of the waste, without restriction, is bad in point of law. 3 B. & A. 153.

The cultivation of common lands, and the enclosure and management of them, are now carried on under private acts of parliament, subject to, and adopting the regulations laid down in, the 13 Geo. III. c. 81. and 41 Geo. III. c. 109. which are incorporated into all special enclosure acts. Chitty.