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 (because the tenant has already ceased to do service for two years). (ƒ) 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 (for three whole years), he might be ejected from such emphyteutic lands. (g) But by the statute of Gloucester, the cessavit does not lie for lands let upon fee-farm rents, unless they have lain fresh and uncultivated for two and there be *not sufficient distress upon the prem[*233] years, ises; 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 Gloucester 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. (2) 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 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, 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 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 assize 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 (on 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. (4) 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 feudal principles, *so it is ex[*234] pressly to be met with in the feudal constitutions: (m) “vasallus, qui abnegavit feudum ejusve conditionem, exspoliabitur" (the vassal who has denied either his fee, or the condition by which he held it, shall be deprived of it). Protection of tenant.- And, as on the one hand the ancient law provided these several remedies to obviate the knavery and punish (f) lbid. 208. (h) F. N. B. 209. 2 Inst. 208. (g) Cod. 4, 66, 2. (i) 2 Inst. 401, 460 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 (do not unjustly oppress); (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 ford; being of 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 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 hand; 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. (4) 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, (8) 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 quitted (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) 1 *II. For violation of customary right.- Thus far of the remedies for subtraction of rents or other services due [*235] 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: suit from following) 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 (n) F. N. B. 10. (r) Booth, 136. (0) C. 10. (p) Booth, 126. (s) See book II, ch. 5, pp. 59, 60. 1 The several writs here mentioned were formally abolished by statute 3 and 4 Wm. ÏV, c. 27. They were before not the usual remedies for these wrongs. An action on the case might have been maintained by the tenant at the common law against the landlord for distraining for more rent than was due: Taylor Land. and Ten., § 729, et seq.; and if the tenant through any error or mistake paid to the landlord more than was due, he might recover it back in an action for money had and received to his use, as paid without consideration. For the general principle in these cases, see Union Bank v. (65) (q) F. N. B. 11. 2 Inst. 21. (t) F. N. B. 135. (u) 2 Inst. 374. Bank of U. S., 3 Mass. 74; Bank of Commerce v. Union Bank, 3 N. Y. 230; Little v. Derby, 7 Mich. 325. And if an under-tenant is distrained upon, or is compelled in order to protect his own interest to pay rent to the original landlord, he is entitled to treat the payment as one made to the use of the mesne tenant, and may deduct it from his own rent, or recover it back from the mesne tenant if nothing was owing to him. As to the obligation of the mesne tenant to indemnify the undertenant generally, see Taylor Land, and Ten., § 738. 1025 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 (for suit at his mill), (w) commanding the defendant to do his suit at that mill, quam ad illud facere debet, et solet (which he ought, and was used to do at it), or show 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 (his suit at the oven, his suit at the kiln, and all others of the same kind); for suit due to his furnum, his public oven or bake-house; 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 neighborhood, 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 sub traction. 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. turbance of ways. 4. Disturbance of tenures. 5. Disturbance of patronage. 3. Dis I. Disturbance of franchises happens when a man has the franchise of holding a court-leet, of keeping a fair or market, of freewarren, 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 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 the case: or, in case of toll [*237] 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 to totally 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 distrain them damage-feasant: (f) or the commoner may bring an action on the case to recover damages, provided the injury done be anything 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 entrance and trespass committed. (g) Surcharging the common.- Another disturbance of the 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 *contracting them into a smaller compass. This injury by surcharging can, properly speaking, only happen, where the [*238] 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; (2) for the law will not suppose that, at the original grant of the common, the lord meant to exclude himself. Remedies.-The usual remedies for surcharging the common, are either by distraining so many of the beasts as are above the number allowed, or else by an action of trespass, both of 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 a 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. (7) The execution of this writ must [*239] be by a jury of twelve men, who are upon their *oaths to ascertain, under the superintendence 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 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 second 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 tenor of the last admeasurement: and if he has, he shall then forfeit to the king the supernumerary cattle put in, and also shall pay damages 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. [*240] (k) 2 Inst. 369. Finch, L. 814. (m) Bro. Abr. tit. prescription, 28. (p) F. N. B. 126. 2 Inst. 370. |