d of mort d'ancestor or novel disseisin will lie of rents as well as of lands; 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. 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 Edw. I. c. 4. and of Westm. 2. 13 Edw. I. c. 21 & 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 coutinued for two years, the lord or donor and his heirs have a writ of cessavit to recover the land itself, eo quod tenens in faciendis servitiis per biennium jam cessavit.1 In like manner, by the civil law, if a tenant who held lands upon the payment of rents or services, or “jure emphyteutico," neglected to pay or perform them per totum. triennium, he might be ejected from such emphyteutic lands. 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 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 distrein. 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 d F. N. B. 195. e Ibid. 151. f Ibid. 208. 8 Cod. 4. 66. 2. F. N. B. 209. 2 Inst. 298. 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. It is easy to observe, that the statute 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 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 dis claimer, 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.i 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 to be met with in the feodal constitutions: "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; which is an ancient writ founded on that chapter of magna carta, m Feud. l. 2. t. 26. i 2 Inst. 401. 460. k See page 192. 1 Finch. L. 270, 271. n n F. N. B. 10. • c. 10. 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. 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. 2. The writ of mesne, de medio; which is also in the nature of a writ of right, 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 by the mesne lord. 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." 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) 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 p Booth. 126. 9 F. N. B. 11. 2 Inst. 21. r Booth. 136. • See book II. ch. 5. page 60, 61. t F. N. B. 135. there only. And for this injury the owner shall have a writ de secta ad molendinum," 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. In like manner, and for like reasons, the register 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. And thus much for the injury of subtraction. w F.N B. 123. * Co. Entr. 461. y fol. 153. 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. 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 by a special action on the case: or, in case of toll, may take a distress if he pleases." 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 b Cro. Eliz 558. a Finch. L. 187. VOL. III.-PART II. U |