formance 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;(8) 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)(9) 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, (10) 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 *233] and uncultivated for 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 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 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, (11) 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,(12) 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 endeavors to defraud his lord is himself deprived of the estate, as it evidently proceeds upon feodal principles, (f) F. N. B. 208. (g) Cod. 4, 66, 2. (h) F. N. B. 209. 2 Inst. 298. (i) 2 Inst. 401, 460. (k) See page 206. (8) [He hath ceased.] (9) [Because the tenant has already ceased to do service for two years.] (10) [For three whole years.] (11) 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. (12) [On disclaimer.] *so it is expressly to be met with in the feodal constitutions: (m) [*234 "vasallus, qui abnegavit fendum ejusve conditionem exspoliabitur." (13) 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) (14) which is an ancient writ founded on that chapter(o) of magna carta, (15) 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) (16) 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 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. (9) 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)(17) (13) ["The vassal who has denied either his fee, or the condition by which he held it, shall be deprived of it."] (14) [Do not unjustly oppress.] (15) Lord Coke (2 Inst. p. 21) expressly denies this, and cites the writ from Glanville, and says it is mentioned in the Mirror.-Coleridge. (16) 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. (4 ed.) 719.-CHITTY. (17) But these several writs have long been obsolete and are now abolished. 3 & 4 W. IV. c. 27, s. 36.-STEWART. A tenant may maintain case against his landlord if the land. lord distrains irregularly, or takes goods which are not subject to distress, or distrains for more rent than is due. Taylor's Landlord and Tenant (7 ed. 1879), ? 729; even though the distress taken was not sufficient to pay the rent due, for, in such case, though there is no real damage, there is legal damage. Ibid. 735. Where 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 v. Hampton, 2 Smith's Lead. Cases, (4 ed.) p. 325, notes. The true ground of recovery in all cases of money paid by mistake is that the money has been paid without any consideration. Little v. Derby, 3 Cooley, 325, 327 (Mich. 1859). 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 v. Carter, 5 Bingh. 406,) or sued for in an action as money paid to his use. Exall v. Partridge, 8 T. R. 308. Bandy v. Cartwright, 8 Exc. 913. For where a tenant underlets the premises, the law implies a duty on his part to indemnify the under-tenant against all his covenants with the superior landlord; and the undertenant may have an action on the case against him for any injury he may sustain, by *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) (18) 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) (19) commanding the defendant to do his suit at that mill, quam ad illud facere debet, et solet, (20) 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;(21) 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. (22) And thus much for the injury of subtraction. *236] CHAPTER 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. 2. Disturbance of common. 3. Disturbance of ways. turbance of tenure. 5. Disturbance of patronage. 4. Dis 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 thereAs if another, by distress, menaces, or persuasions, prevails upon the (w) F. N. B. 123. (2) Co. Entr. 461. (y) Fol. 153. reason of any such breach of covenant. Taylor's Landlord and Tenant (7 ed. 1879) ? 738. (18) [From following.] (19) [For suit at his mill.] (20) [Which he ought, and was used to do at it.] (21) [His suit at the oven, his suit at the kiln, and all others of the same kind.] (22) 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.-CHRISTIAN. 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 special action [*237 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 nc 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 cattie of a commoner, be found upon the land, 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) (b) Cro. Eliz. 558. (e) Cro. Eliz. 876. Cro. Jac. 195. Lutw. 108. (1) 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 wrong-doer 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. I 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 [lying down] and couchant [resting] 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. I 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 [For so much]. 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 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 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. (2) 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 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, (3) as any of the commoners, (h) See book ii. ch. 3. (i) 1 Roll. Abr. 399. (j) Freem. 273. lies for it." Mr. Sergeant 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 favor 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 v. Spateman, I Saund. Rep. 546, a., n. 2, citing Wells v. Watling, 2 Bla. Rep. 1233. Hobson v. Todd, 4 T. R. 71.-Coleridge. (2) The modern doctrine upon this subject is somewhat different; for it is now held that a prescription for a sole and several pasture, etc. 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 [Under that name] for the whole year in exclusion of the lord, (1 Lev. 268. I Ventr. 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. I 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. This seems to be too generally expressed; for the lord's right may be narrowed down to any thing short of absolute exclusion for the whole year. He may, together with the commoners, be entirely excluded for a part of the year, his right may be limited to the feeding of a limited number for a part of the year, or the commoner may have the pasture entirely to his exclusion for a part of the year. Potter v. North, 1 Saund. Rep. 353, n. 2.-COLERIDGE. (3) Finch, in the passage cited, expressly says that "the lord cannot have the writ of admeasurement against his tenants surcharging; for he may distrain the surplusage for |