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*SUBTRACTION, which is the fifth species of injuries affecting a man's [*230 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 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 tenure, being the conditions upon which the antient 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 misdemeanours 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 omnium) in money, which will provide all the rest; all which are comprised under the one general name of reditus, return, or rent. And 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.
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; 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, that 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.
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 lease for life, &c., no action of debt lay by the common law during the continuance of the freehold out of which [*232 it issued ;(c) for the law would not suffer a real injury to be remedied by an action that was merely personal. However, by the statutes 8 Anne, c. 14, and 5 Geo. III. c. 17, actions of debt may now be brought at any time to recover
(4) See pages 6, 148.
(*) Finch, I 285.
() 1 Roll. Abr. 595.
such freehold rents. 2. An assize of mort d'ancestor or novel disseisin 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.(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, ho 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 *233] have lain fresh and uncultivated for two years, and there be *not suffi cient 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 further, 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 re-entry for nonpayment 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 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 11 Geo. II. c. 19, § 16,2 which enacts that where any tenant at rackrent 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, 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.(1) This piece of retaliating justice, whereby the tenant who endeavours to defraud his lord is himself deprived of the estate,
(d) F. N. B. 195.
Cod. 4, 60, 2.
(4) F. N. B. 209. 2 Inst. 298.
(1) 2 Inst. 401, 460.
(*) See page 206.
() Finch, L. 270, 271.
1 Now formally abolished, 3 & 4 W. IV. c. 27, s. 36.—STEWART.
'And see by 57 Geo. III. c. 52, which gives similar power though only half a year's rent is in arrear, and although no right of re-entry be reserved.-CHITTY.
as it evidently proceeds upon feodal principles, *so it is expressly to be met with in the feodal constitutions :(m) "vasallus, qui abnegavit feudum ejusve conditionem, exspoliabitur."
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;(n) which is an antient 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) 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 hends; 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.(g) 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 ser[*235 vices 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 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,(w) commanding the defendant to do his suit at that mill, quam ad illud facere debet, et solet, or show good cause to the contrary: in which action the (m) Feud. l. 2, t. 26.
(n) F. N. B. 10.
(*) Booth, 136.
See book ii. ch. 5, pages 59, 60.
Lord Coke (2 Inst. p. 21) expressly denies this, and cites the writ from Glanville, ana says it is mentioned in the Mirror.-COLERIDGE.
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.-CHITTY.
But these several writs have long been obsolete and are now abolished. 3 & 4 W. IV. c 27, s. 36.-STEWART.
The remedy of the tenant in either of the cases above stated is now by an ordinary personal action. Where, as in the first case stated, the tenant has overpaid the landlord in ignorance of the facts, the money so overpaid is considered by the law to be money received for the use of the tenant, and the tenant may accordingly, provided there have been no laches on his part, recover it in an action. Marriott vs. Hampton, 2 Smith's Lead. Cases, 4th ed. p. 325, notes. In the second case stated,-that of an under-tenant paying the landlord in default of the mesne tenant's doing so,-the payment by the under-tenant is considered a payment pro tanto of the rent due to his immediate landlord, the mesne tenant, and may either be deducted from the rent accruing due to the mesne landlord, (Carter vs. Carter, 5 Bingh. 406,) or sued for in an action as money paid to his use. Exall vs. Partridge, 8 T. R. 308. Bandy vs. Cartwright, 8 Exc. 913.-KERR.
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 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 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.
*236] *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.
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 *237] by a special action on the case; or, in case of toll, may take a distress if
ne 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,
Co. Entr. 461.
() Fol. 153.
(a) Finch, L. 187.
(b) Cro. Eliz. 558.
() 1 Roll. Abr. 396.
(4) Co. Litt. 122.
(*) Cro. Eliz. 876. Cro. Jac. 195. Lutw. 108.
This is now the only action in use for most of the injuries specified in this chapter, the ancient appropriate writs having become so obsolete that few special pleaders, if any would know how to proceed in them. See, further, 2 Saund. 113, b.-('BRISTIAN.
the lord or any of the commoners may distrain 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)1
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 *contracting them into a smaller compass. This injury 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
(5)9 Rep. 112.
(A) See book ii. ch. 3.
1If 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 wrong-doer might gain a right by repeated acts of encroachment. 2 Bla. Rep. 1233. 4 T. R. 71. 2 East, 154. 1 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 McCleland's Rep. 373. One farthing damages will sustain the verdict in such case. Ib.; and 2 East, 154. It has been held that a claim of common for all the plaintiff's cattle levant and couchant on his land was supported 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.
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 of the commoner is injured by such an act, and therefore allows him to bring an action for it to prevent the wrong-doer from gaining a right by repeated acts of encroachment. For wherever any act injures another's right, and would also be evidence in favour of the wrong-doer claiming the right on any future occasion, an action may be maintained for such act without proof of any specific injury. Mellor vs. Spateman, 1 Saund. Rep. 546, a., n. 2, citing Wells vs. Watling, 2 Bla. Rep. 1233. Hobson vs. Todd, 4 T R. 71. COLERIDGE.