to say, that a stranger did the waste, for against him the plaintiff hath no remedy though the defendant is entitled to sue such stranger in an action of trespass vi et armis, and shall recover the damages he has suffered in consequence of such unlawful act (a) (10).

When the waste and damages are thus ascertained, either by confession, verdict, or inquiry of the sheriff, judgment is given in pursuance of the statute of Glocester, c. 5. that the plaintiff shall recover the place wasted; for which he has immediately a writ of seisin, provided the parti[*229] cular estate be still subsisting (for, if it be expired, *there can be no forfeiture of the land), and also that the plaintiff shall recover treble the damages assessed by the jury (11), which he must obtain in the same manner as all other damages, in actions personal and mixed, are obtained, whether the particular estate be expired, or still in being.

CHAPTER XV.

OF SUBTRACTION.

SUBTRACTION, which is the fifth species of injuries affecting a man's real property, happens when any person who owes any suit, duty, custom, or service to another, withdraws or neglects to perform it. It differs from a disseisin, in that this is committed without any denial of the right, consisting merely of non-performance; that strikes at the very title of the party injured, and amounts to an ouster or actual dispossession. Subtraction however, being clearly an injury, is remediable by due course of

(a) Law of nisi prius, 112.

ter, action did not lie for waste against tenant for life or years, or any other tenant coming in by agreement of parties, and tenant at will is not within the statute. But if tenant at will stipulates with his lessor to be responsible for fire by negligence, or for other permissive waste, without doubt an action will lie on such express agreement. The same observation holds with respect to tenants for life or years before the statute of Glocester; for though the law did not make them liable to any action, yet it did not restrain them from making them selves liable by agreement. At the common law, lessees were not answerable to landlords for accidental or negligent burning; for as to fires by accident, it is expressed in Fleta, that fortuna ignis vel hujusmodi eventus inopinati omnes tenentes excusant; and lady Shrewsbury's case is a direct authority to prove that tenants are equally excusable for fires by negligence. Fleta, lib. 1. c. 12. Then came the statute of Glocester, which, by making tenants for life and years liable to waste without exception, consequently rendered them answerable for destruction by fire; but now by the 6 Ann. c. 31. the ancient law is restored,

In New-York the act corresponding to the Statute of Glocester is in 2 R. S. 334, § 1, &c.

for the statute of Anne exempts all persons from actions for accidental fire in any house, except in the case of special agreements between landlord and tenant. See 14 Geo. III. c. 78. s. 86. It was doubted under this statute, whether a covenant to repair generally extends to the case of fire, and so becomes an agreement within the statute; and therefore, where it is intended that the tenant shall not be liable, it has been usual in the covenant for repairing, expressly to except accidents by fire. See Harg. Co. Litt. 57. a. But it is now settled, that a general unqualified covenant to repair, subjects the tenant to the expense of rebuilding. 6 T. R. 650. The tenant at all events continues liable to pay rent.__3 Anst. 687. 3 Dow. 233. 1 T. R. 310. 4 Taunton, 45. 18 Ves. J. 115.

(10) The verdict for the plaintiff, in a writ of waste, ought to find the place wasted. 2 Bingh. R. 262.

(11) See 2 R. S. 335, § 10. A view is unnecessary if an issue of fact is joined, unless then the court direct it on application of one of the parties. (Id. § 9.)

but there is no act similar to 6 Ann. c. 31. or 14 Geo. III. c. 78.

law: but the remedy differs according to the nature of the services whether they be due by virtue of any tenure, or by custom only.

I. Fealty, suit of court, and rent, are duties and services usually issuing and arising ratione tenurae, being the conditions upon which the ancient lords granted out their lands to their feudatories; whereby it was stipulated, that they and their heirs should take the oath of fealty or fidelity to their lord, which was the feodal bond or commune vinculum between lord and tenant; that they should do suit, or duly attend and follow the lord's courts, and there from time to time give their assistance, by serving on juries, either to decide the property of their neighbours in the court-baron, or correct their misdemeanors in the court-leet; and, lastly, that they should yield to the lord certain annual stated returns, in military attendance, in provisions, in arms, in matters of ornament or pleasure, in rustic employments or *prædial labours, or (which is instar om- [*231] nium) in money, which will provide all the rest; all which are comprised under the one general name of reditus, return, or rent. 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.

And

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 distrained 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 (1); 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 satisfaction made. A distress of this nature, has no bounds with regard to its 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.

that

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 *a [*232] lease for life, &c. no action of debt lay by the common law, during the continuance of the freehold out of which it issued (c); for the law would not suffer a real injury to be remedied by an action that was merely personal.53 However, by the statutes 8 Ann. c. 14. and 5 Geo. III. c. 17. actions of debt may now be brought at any time to recover such freehold

(a) See page 6. 148.

(b) Finch, L. 285.

(c) 1 Roll. Abr. 595.

(1) Allodial tenures being adopted in New-York in place of feudal, fealty and distress for it seem to be abolished. (1 R. S. 718, § 3, &c.)

VOL. II.

(53) See Hov. n. (53) at the end of the Vol. B. III.

rents (2). 2. An assise of mort d'ancestor or novel dissessin will lie of rents as well as of lands (d); if the lord, for the sake of trying the possessory right, will make it his election to suppose himself ousted or disseised thereof. This is now seldom heard of; and all other real actions to recover rents, 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 species however is, 3. The writ de consuetudinibus et servitiis, which lies for the lord against his tenant, who withholds from him the rents and services due by custom, or tenure, for his land (e). 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 cessavit; which lies by the statutes of Glocester, 6 Edward I. c. 4. and of Westm. 2. 13 Edw. I. c. 21. and 41. when a man who holds lands of a lord by rent or other services, neglects or ceases to perform his services for two years together; or where a religious house hath lands given it, on condition of performing some certain spiritual service, as reading prayers or giving alms, and neglects it; in either of which cases, if the cesser or neglect have continued for two years, the lord or donor and his heirs shall have a writ of cessavit to recover the land itself, eo quod tenens in faciendis servitiis per biennium jam cessavit (f). 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 perform them per totum triennium, he might be ejected from such emphyteutic lands (g). But by the statute of Glocester, the cessavit does not lie for lands let upon fee-farm rents, unless they have lain fresh and uncultivated for [*233] 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 distrain (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 cessavit: and therefore the same statute of Glocester has provided farther, that upon tender of 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 (i). It is easy to observe, that the statute (k) 4 Geo. II. c. 28. (which permits landlords who have a right of reentry 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 ancient 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 11 Geo. II. c. 19. § 16. (3) 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

(d) F. N. B. 195.

(e) Ibid. 151.

(f) Ibid. 208.

(g) Cod. 4. 66. 2.

(2) See 1 R. S. 747, § 19.

(3) And see by 57 Geo. III. c. 52. which gives similar power, though only half a year's

(h) F. N. B. 209. 2 Inst. 298.

(i) 2 Inst. 401. 460.

(k) See page 206.

rent is in arrear, and although no right of reentry be reserved.

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 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 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 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 expressly [234] to be met with in the feodal constitutions (m): "vasallus, qui abnegavit feudum ejusve conditionem, exspoliabitur."

And, as on the one hand the ancient 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 (n); which is an ancient 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) (4). It lies, where the tenant in fee-simple and his ancestors have held of the lord by certain services; and the lord hath ordained 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 (q). 2. The writ of mesne, de medio; which is also in the nature of a writ of right (r), and lies, when upon a subinfeudation the mesne, or middle lord (s), suffers his under-tenant, or tenant paravail, to be distrained upon by the lord paramount, for the rent due to him from the mesne lord (t). 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 (u) (5).

*II. Thus far of the remedies for subtraction of rents or other [*235] 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

(1) Finch, L. 270, 271.

(m) Feud. 1. 2, t. 26.

(n) F. N. B. 10.

(0) c. 10.

(p) Booth, 126.

(4) At common law an action on the case may be supported by a tenant, or third person, against a landlord for distraining for more rent than is due, and that is now the usual remedy. 2 Chitty on Pl. 4th ed. 719.

(q) F. N. B. 11. 2 Inst. 21.

(r) Booth, 136.

(s) See book II. ch. 5. pages 59, 60.
(t) F. N. B. 135.
(u) 2 Inst. 374.

(5) The ancient remedies mentioned in this and the two succeeding sections seem to exist no longer in New-York. (2 R. S. 343, § 24). As to the modern remedies, see 2 R. S. 505, § 30, p. 512, 24, &c.

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 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 (x). In like manner, and for like reasons, the register (y) 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 (6). And thus much for the injury of subtraction.

CHAPTER XVI.

OF DISTURBANCE (1).

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. 2. Disturbance of common. 3. Disturbance of ways. 4. Disturbance of tenure. 5. Disturbance of patronage (2).

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

(w) F. N. B. 123.

(z) Co. Entr. 461

(6) 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

(y) fol. 153.

(a) Finch, L. 187.

the Case for a Disturbance, and Quare Impedit, D.

(2) The first and last of these divisions are inapplicable to New-York.