by surcharging 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 (5).

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 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 (j). But the ancient and most effectual method of proceeding is by writs 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 [*239] jury of twelve men, who are upon their oaths to ascertain, un

der 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 (0), does in fact very rarely exist (6).

(h) See book II. ch. 3.

(i) 1 Roll. Abr. 399.

(j) Freem. 273.

(k) 2 Inst. 369. Finch, L, 314.

(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 co nomine for the whole year in exclusion of the lord, I 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 re

(54) See Hov. n. (54) at

(1) F. N. B. 125.

(m) Bro. Abr. t. prescription, 28.
(n) Hardr. 117.

(0) Lord Raym. 407.

strained, 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.

(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, 638. 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 the end of the Vol. B. [II.

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 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 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 (7).

There is yet another disturbance of common, when the owner [*240] of the land, or other person, so encloses or otherwise obstructs it, that 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) (8). 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 defendant shall be compelled to permit the plaintiff to enjoy his

(p) F. N. B. 126. 2 Inst. 370. (4) Cro. Eliz. 198.

overcharges the common, by putting in cattle that are not levant and couchant, can another commoner distrain the surplus, at least before admeasurement. 3 Wils. 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 the manor, or one who puts his cattle on the common with the lord's license, the commoner cannot maintain an action, unless he has sus

(r) Cro. Jac. 195.
(s) F. N. B. 179.

tained a specific injury. For the lord is entitled to what remains of the grass, and therefore may consume it himself, or license another to depasture it. 4 T. R. 73. 2 Mod. 6. Willes, 619.

(7) In New-York these ancient actions seem to be abolished, (2 R. S. 343, § 24,) as well as the other real actions mentioned in this chapter: the actions on the case, however, still remain.

(8) 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.

common as he ought (t). 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 appendant [*241] to their estates; provided he leaves sufficient common to his tenants, according to the proportion of their land (9). 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. I. 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 tenants 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 (10), (11).

III. The third species of disturbance, that of ways (12), is very similar in its nature to the last: it principally happening when a person, who hath a right to a way over another's grounds, by grant or prescription, is obstructed by enclosures, or other obstacles, or by ploughing across it; by which means he cannot enjoy his right of way, or at least not in so commodious a manner as he might have done. If this be a way annexed to

(t) Finch, L. 275. F. N. B. 123. (u) Cro. Jac. 195.

(9) See 2 book, p. 34. note.

(10) 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 be 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. I 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

(w) 2 Inst. 476.

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.

(11) Common of pasture of lands is left in New-York without any statutory provisions similar to those mentioned in the text.

(12) As to private ways in general, see ante, 2 book, 35 to 37. Also Com. Dig, title Chemin.

nis estate, and the obstruction is made by the tenant of the land, this brings it to another species of injury; for it is then a nuisance, for which an assise will lie, as mentioned in a former chapter (x). But if the right of way, thus obstructed by the tenant, be only in gross (that is, annexed to a man's person and unconnected with any lands or *tene- [*242] ments), or if the obstruction of a way belonging to a house or land is made by a stranger, it is then in either case merely a disturbance : for the obstruction of a way in gross is no detriment to any lands or tenements, and therefore does not fall under the legal notion of a nuisance, which must be laid, ad nocumentum liberi tenementi (y); and the obstruction of it by a stranger can never tend to put the right of way in dispute: the remedy therefore for these disturbances is not by assise or any real action,55 but by the universal remedy of action on the case to recover damages (2).

IV. The fourth species of disturbance is that of disturbance of tenure, or breaking that connexion which subsists between the lord and his tenant, and to which the law pays so high a regard, that it will not suffer it to be wantonly dissolved by the act of a third person. To have an estate well tenanted is an advantage that every landlord must be very sensible of; and therefore the driving away of a tenant from off his estate is an injury of no small consequence. So that if there be a tenant at will of any lands or tenements, and a stranger either by menaces and threats, or by unlawful distresses, or by fraud and circumvention, or other means, contrives to drive him away, or inveigle him to leave his tenancy, this the law very justly construes to be a wrong and injury to the lord (a), and gives him a reparation in damages against the offender by a special action on the case.

V. The fifth and last species of disturbance, but by far the most considerable, is that of disturbance of patronage (13); which is an hindrance or obstruction of a patron to present his clerk to a benefice.

This injury was distinguished at common law from another species of injury, called usurpation; which is an absolute ouster or dispossession of the patron, and happens when a stranger, that hath no right, presenteth a clerk, and he is thereupon admitted and insti- [243] tuted (b). In which case, of usurpation, the patron lost by the common law not only his turn of presenting pro hac vice, but also the absolute and perpetual inheritance of the advowson, so that he could not present again upon the next avoidance, unless in the mean time he recovered his right by a real action, viz. a writ of right of advowson (c).56 The reason given for his losing the present turn, and not ejecting the usurper's clerk, was that the final intent of the law in creating this species of property being to have a fit person to celebrate divine service, it preferred the peace of the church (provided a clerk were once admitted and instituted) to the right of any patron whatever (14). And the patron also lost the

(z) Ch. 13, p. 218.

(y) F. N. B. 183.

(z) Hale on F. N. B. 185. Lut. 111. 119.

(13) See in general, Mirehouse on Advowsons, and ante, 2 book 22, notes 3, 5, 6, as to advowsons, rights of presentation, &c.

(14) And this preference of the peace of the church to the litigated rights of patrons, was held to prevail in all cases without any regard to infancy, coverture, or any such like disability of the patron. For it was a maxim of the common law, "that he who came in by admisVOL. II (55) See Hov. n. (55) at the end of

(a) Hal. Anal. c. 40. 1 Roll. Abr. 108.
(b) Co. Litt. 227.
(c) 6 Rep. 49.

sion and institution, came in by a judicial act, and the law presumes that the bishop who has the care of the souls of all within his diocese, for which he shall answer at his fearful and final account (in respect of which he ought to keep and defend them against all heretics, and schismatics, and other ministers of the devil), will not do or assent to any wrong to be done to their patronages, which is of their earthly the Vol. B. III. (56) Ibid. (56) B. III.

inheritance of his advowson, unless he recovered it in a writ of right, because by such usurpation he was put out of possession of his advowson, as much as when by actual entry and ouster he is disseised of lands or houses; since the only possession, of which an advowson is capable, is by actual presentation and admission of one's clerk. As, therefore, when the clerk was once instituted (except in the case of the king, where he must also be inducted) (d) the church became absolutely full; so the usurper by such plenarty, arising from his own presentation, became in fact seised of the advowson: which seisin it was impossible for the true patron to remove by any possessory action, or other means, during the plenarty or fulness of the church; and when it became void afresh, he could not then present, since another had the right of possession. The only remedy therefore, which the patron had left, was to try the mere right in a writ of right of advowson; which is a peculiar writ of right, framed for this special purpose, but in every other respect corresponding with other writs of right (e): and if a man recovered therein, he regained the possession of his advowson, and was entitled to present at the next avoidance (f). But in order to such recovery he must allege a presentation in nimself or some of his ancestors, which proves him or them to have been

once in possession: for, as a grant of the advowson, during the [*244] fullness of church, conveys *no manner of possession for the present, therefore a purchasor, until he hath presented, hath no actual seisin whereon to ground a writ of right (g). Thus stood the common law.

But, bishops in ancient times, either by carelessness or collusion, frequently instituting clerks upon the presentation of usurpers, and thereby defrauding the real patrons of their right of possession, it was in substance enacted by statute Westm. 2. 13 Edw. I. c. 5. § 2. that if a possessory action be brought within six months after the avoidance, the patron shall (notwithstanding such usurpation and institution) recover that very presentation; which gives back to him the seisin of the advow

son.

Yet still, if the true patron omitted to bring his action within six months, the seisin was gained by the usurper, and the patron, to recover it, was driven to the long and hazardous process of a writ of right. To remedy which it was farther enacted by statute 7 Ann. c. 18. that no usurpation shall displace the estate or interest of the patron, or turn it to a mere right; but that the true patron may present upon the next avoidance, as if no such usurpation had happened. So that the title of usurpation is now much narrowed, and the law stands upon this reasonable foundation that if a stranger usurps my presentation, and I do not pursue my right within six months, I shall lose that turn without remedy, for the peace of the church, and as a punishment for my own negligence; but that turn is the only one I shall lose thereby. Usurpation now gains no right to the usurper, with regard to any future avoidance, but only to the present vacancy: it cannot indeed be remedied after six months are past; but, during those six months, it is only a species of disturbance.

Disturbers of a right of advowson may therefore be these three persons; the pseudo-patron, his clerk, and the ordinary; the pretended patron, by

(d) 6 Rep. 49.

(e) F. N. B. 30.

(f) Ibid. 36.
(g) 2 Inst. 357.

possession; but if the church be litigious, jure patronatus, and so do right." 6 Coke, that he will inform himself of the truth by a 49.