a leafe for life, &c. no action of debt lay by the common law, during the continuance of the freehold out of which it iffued: for the law would not fuffer a real injury to be remedied by an action that was merely perfonal. However, by the statutes 8 Ann. c. 14. and 5 Geo. III. c. 17. actions of debt may now be brought at any time to recover fuch freehold rents. 2. An aflife of mort d'ancestor or novel diffeifin will lie of rents as well as of lands; if the lord, for the fake of trying the poffeffory right, will make it his election to suppose himself ousted or diffeifed thereof. This is now seldom heard of; and all other real actions to recover rent, 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 fpecies however is, 3. The writ de confuetudinibus et fervitiis, which lies for the lord against his tenant, who withholds from him the rents and fervices due by cuftom, or tenure, for his land. This compels a fpecific payment or performance of the rent or service; and there are alfo others, whereby the lord fhall recover the land itself in lieu of the duty withheld. As, 4. The writ of ceffavit: which lies by the ftatutes of Glocefter, 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 fervices, neglects or ceafes to perform his fervices for two years together; or where a religious houfe hath lands given it, on condition of performing fome certain spiritual fervice, as reading prayers or giving alms, and neglects it; in either of which cafes, if the ceffer or neglect have continued for two years, the lord or donor and his heirs fhall have a writ of ceffavit to recover the land itself, eo quod tenens in faciendis fervitiis per biennium jam ceffavit. In like manner, by the civil law, if a tenant who held lands upon payment of rent or fervices, or "jure emphyteutico," neglected to pay or perform them per totum triennium, he might be ejected from fuch emphyteutic lands. But by the ftatute of Glocester, the ceffavit does not lie for lands let upon fee-farm rents, un CI Roll. Abr. 595* d F. N. B. 195. e Ibid. 151. less they have lain fresh and uncultivated for two years, and there be not fufficient diftrefs upon the premises; or unless the tenant hath so enclosed the land, that the lord cannot come upon it to diftrein h. For the law prefers the fimple and ordinary remedies, by distress or by the actions just now mentioned, to this extraordinary one of forfeiture for a ceffavit: and therefore the fame statute of Glocefter has provided farther, that upon tender of arrears and damages before judg ment, and giving security for the future performance of the fervices, the process shall be at an end, and the tenant shall retain his land; to which the statute of Westm. 2. conforms, fo far as may ftand with convenience and reason of lawi. It is eafy to obferve, that the ftatute * 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 fome measure copied from the antient writ of ceffavit: especially as it may be fatisfied and put an end to in a fimilar manner, by tender of the rent and costs within fix months after. And the fame remedy is, in fubftánce, adopted by ftatute 11 Geo. II. c. 19. § 16. which enacts, that where any tenant at rack-rent shall be one year's rent in arrear, and fhall defert the demifed premifes, leaving the fame uncultivated or unoccupied, so that no fufficient distress can be had: two juftices of the peace (after notice affixed on the premifes for fourteen days without effect) may give the landlord poffeffion thereof, and thenceforth the lease fhall be void. 5. There is alfo another very effectual remedy, which takes - place when the tenant upon a writ of affife for rent, or on a replevin, difowns or disclaims his tenure, whereby the lord lofes his verdict: in which cafe the lord may have a writ of right, fur difclaimer, grounded on this denial of tenure; and fhall, upon proof of the tenure, recover back the land itself fo holden, as a punishment to the tenant for fuch his falfe difclaimer. This piece of retaliating justice, whereby the tenant who endeavours to defraud his lord is himself deprived of the eftate, as it evidently proceeds upon feodal principles, h F. N. B. 2c9. 2 Inft. 298. k See page 206. i 2 Inft. 401. 460. 1 Finch. L. 270, 271. fo it is exprefsly to be met with in the feodal conftitutions TM : « vafallus, qui abnegavit feudum ejufve conditionem, exfpon "liabitur." AND, as on the one hand the antient law provided thefe feveral remedies to obviate the knavery and punish the ingra titude of the tenant, fo on the other hand it was equally careful to redrefs the oppreffion of the lord; by furnishing, 1. The writ of ne injufte vexes"; which is an antient writ founded on that chapter of magna carta, which prohibits diftreffes 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-fimple and his ancestors have held of the lord by certain services; and the lord hath obtained feifin of more or greater fervices, by the inadvertent payment or performance of them by the tenant himself. Here the tenant cannot in an avowry avoid the lord's poffeffory right, because of the seisin given by his own hands; but is driven to this writ, to deveft the lord's poffef fion, and establish the mere right of property, by ascertaining the fervices, and reducing them to their proper ftandard. But this writ does not lie for tenant in tail; for he may avoid fuch feifin of the lord, obtained from the payment of his an→ ceftors, by plea to an avowry in replevin 2. 2. The writ of mefne de medio; which is also in the nature of a writ of right', and lies, when upon a fubinfeudation the mesne, or middle lords, suffers his under-tenant, or tenant paravail, to be distreined upon by the lord paramount, for the rent due to him from the mefne lord. And in fuch case the tenant fhall 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 fhall hold immediately of the lord paramount himself ". II. THUS far of the remedies for fubtraction of rents or other fervices due by tenure. There are also other services, due by antient custom and prescription only. Such is that of doing fuit to another's mill: where the perfons, resident in a particular place, by ufage 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 fuit, (their fecta, a fequendo) from the antient mill. This is not only a damage, but an injury, to the owner; because this prescription might have a very reafonable 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 fecta ad molendinum", commanding the defendant to do his fuit at that mill, quam ad illud facere debet, et folet, or fhew good cause to the contrary: in which action the validity of the prefcription 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 y will inform us, that a man may have a writ of fecta ad furnum, fecta ad torrale, et ad omnia alia hujufmodi ; for fuit due to his furnum, his public oven or bakehoufe; or to his torrale, his kiln, or malthoufe; when a perfon's ancestors have erected a convenience of that fort for the benefit of the neighbourhood, upon an agreement (proved by immemorial custom) that all the inhabitants should use and refort to it, when erected. But befides thefe fpecial remedies for fubtractions, to compel the fpecific performance of the fervice due by custom: an action on the cafe 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. 45 y fol. 153. CHAPTER THE SIXTEENTH, OF DISTURBANCE. THE HE fixth and laft fpecies of real injuries is that of difturbance; which is usually a wrong done to fome incorporeal hereditament, by hindering or difquieting the owners in their regular and lawful enjoyment of it. I fhall confider five forts of this injury; viz. 1. Disturbance of franchifes. 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 feifing waifs or eftrays, or (in fhort) any other fpecies of franchise whatfoever; and he is disturbed or incommoded in the lawful exercife thereof. As if another by diftrefs, menaces, or perfuafions, prevails upon the fuitors not to appear at my court; or obftructs the paffage to my fair or market; or hunts in my freewarren; or refufes to pay me the accustomed toll; or hinders me from seising the waif or estray, whereby it escapes or is carried out of my liberty: in every cafe of this kind, all which it is impoffible here to recite or fuggeft, 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 a Finch. L, 187, therefore |