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as it evidently proceeds upon feodal principles, *so it is expressly to be met with in the feodal constitutions :(m) "vasallus, qui abnegavit

[ *234 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() 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 hands; but is drven 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 suoh 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)s

*II. Thus far of the remedies for subtraction of rents or other services due by tenure. There are also other services due by antient custom

[*235 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

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(-) Peud. l. 2, L. 26.
(") F. N. B. 10.
(° C. 10.
( Booth, 126.
(C) F. N. B. 11. 2 Inst. 21.

(+) Booth, 136.
• See book ii. ch. 5, pages 59, 60.

F. N. B. 135.
*) 2 Inst. 374.

F. N. B. 123.

'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 personai uction. 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 piesne landlord, (Carter vs. Carter, 5 Bingh. 406,) or sued for in an action as money paid to bis use. Exal) vs. Partridge, 8 T. R. 308. Bandy os. Cartwright, 8 Exc. 913.-KERR. VOL. IL-11

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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 hy 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.

CHAPTER XVI.

OF DISTURBANCE.

*The sixth and last species of real injuries is that of disturbance; *236] 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 *237]

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.(6)

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,

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Co. Entr. 461.
Pol. 153,
Finch, L. 187.
Cro. Eliz. 558.

() 1 Roll. Abr. 396.
(d) 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.- CHRISTIAN.

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 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)'

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

[*238 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 ;() for (3) 9 Rep. 112.

(*) See book ii. ch. 3. () Ibid.

(6) 1 Roll. Abr. 399. 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 Bia. 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 wae 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 tho 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, I Saund. Rep. 546, a., n. 2, citing Wells vs. Watling, 2 Bla. Rep. 1233. Hobson vs. Todd, 4 T. R. 71. -COLERIDGE.

the law will not suppose that, at the original grant of the common, the lord meant to exclude himself.:

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 antient 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, 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.(I) *239]

The execution of this writ must 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 antient 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.

(**)Bro. Abr. tit. prescription, 28. 2 Inst. 369. Finch, L. 314.

() Lord Raym. 407.

Freem. 273.

(5) Hardr. 117.

F. N. B. 125.

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? 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 eo nomine for the whole year in exclusion of the lord, (1 Lev. 268. 1 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. 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.-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 vs. North, 1 Saund. Rep. 353, n. 2.-COLERIDGE.

• 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 damage-feasant.” And Fitz. N. B. 125, D. is an authority to the same effect. Lord Hale, citing several cases from the year-books, is of a different opinion. But all these seem agreed that the commoner cannot have it against the lord.-COLERIDGE.

* 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. Abr. 320, 405, pl. 5. Yelv. 104,) and not of the lord, (2 Buls. 117,) nor where a commoner 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 quan.

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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 procueding 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.

*There is yet another disturbance of common, when the owner of the laud, or other person, so encloses or otherwise obstructs it that the

[*240 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.(0) 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 thu law looks upon this as an injurious disturbance of his right, and has given him his remedy by action against the owner.(r) 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 assize of novel disseisin, against the lord, to recover the possession of his common.(8) 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 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 assize 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,

(") F. N. B. 126. 2 Inst. 370.
(9) Cro. Eliz. 198.

Cro. Jac. 195.

( F. N. B. 179.
(*) Finch, L. 275. F. N. B. 123.
(") Cro. Jac. 195.

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tity 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. (8.) 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 sustained 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. 6 Willes, 619.CHITTY.

► Now abolished, 3 & 4 W. IV. c. 27, s. 36.-STEWART.

* It is the policy of the law not to allow commoners to abate, except only in a 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.—Chitty.

* This is now the only remedy, these real actions having been abolished. 3 & 4 W. IV. c. 27, s. 36.- STEWART.

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