him who hath the immediate estate of inheritance in reversion or remainder, against the tenant for life, tenant in dower, tenant by the curtesy, or tenant for years. This action is also maintainable in pursuance of statute (s) Westm. 2, by one tenant in common of the inheritance against another, who makes waste in the estate holden in common. The equity of which statute extends to joint-tenants, but not to coparceners; because by the old law coparceners might make partition, whenever either of them thought proper, and thereby prevent future waste, but tenants in common and joint tenants could not; and therefore the statute gave them this remedy, compelling the defendant either to make partition, and take the place wasted to his own share, or to give security not to commit any farther waste.(t) But these tenants in common and jointtenants are *not liable to the penalties of the statute of Gloucester, [*228] which extends only to such as have life estates, and do waste to the prejudice of the inheritance. The waste however must be something considerable; for if it amount only to twelve pence, or some such petty sum, the plaintiff shall not recover in an action of waste: nam de minimis non curat lex.(u) (4) This action of waste is a mixed action; partly real, so far as it recovers land; and partly personal, so far as it recovers damages. For it is brought for both those purposes; and, if the waste be proved, the plaintiff shall recover the thing or place wasted, and also treble damages by the statute of Gloucester. The writ of waste calls upon the tenant to appear and show cause why he hath committed waste and destruction in the place named, ad exhæredationem, to the disinherison of the plaintiff. (2) And if the defendant makes default, or does not appear at the day assigned him, then the sheriff is to take with him a jury of twelve men, and go in person to the place alleged to be wasted, and there inquire of the waste done, and the damages; and make a return or report of the same to the court, upon which report the judgment is founded. (x) For the law will not suffer so heavy a judgment, as the forfeiture and treble damages, to be passed upon a mere default, without full assurance that the fact is according as it is stated in the writ. But if the defendant appears to the writ, and afterwards suffers jugdment to go against him by default, or upon a nihil dicit (when he makes no answer, puts in no plea, in defence), this amounts to a confession of the waste; since having once appeared, he cannot now pretend ignorance of the charge. Now, therefore, the sheriff shall not go to the place to inquire of the fact, whether any waste has, or has not been committed; for this is already ascertained by the silent confession of the defendant: but he shall only, as in defaults upon other actions, make inquiry of the quantum of damages. (y) The defendant, on the trial, may give in evidence any thing that proves there was no waste committed, as that the destruction happened by lightning, tempest, the king's enemies, or other inevitable accident. (z) But it is no defence to say, that a stranger did the waste, for against him the plaintiff hath no remedy: though the defendant is entitled to sue such stranger in an action of trespass vi et armis, and shall recover the damages he has suffered in consequence of such unlawful act. (a) (5) (w) F. N. B. 55. (s) 13 Edw. I, c. 22. (z) Co. Litt. 53. (t) 2 Inst. 403, 404. A purchaser at a judicial sale, where the defendant had a right of redemption, may maintain this action, after his title becomes absolute, against one who had previously, but after the sale, committed waste on the premises. Thomas v. Crofut, 14 N. Y., 474; Stout v. Keyes, 2 Doug. Mich., 184. (4) See this maxim illustrated in Broom's Legal Maxims, 106. Generally the smallness of injury will not preclude the maintenance of an action: Pindar v. Wadsworth, 2 East, 154; but the difficulty in drawing a precise line between what is and what is not waste in all cases, is sufficient reason for taking no notice of slight injuries. (5) But one having a vested interest in reversion, may maintain a special action on the case against a stranger who commits waste to the injury of the inheritance. Randall v. Cleveland, 6 Conn., 328; Elliot v. Smith, 2 N. H., 430; Chase v. Hazleton, 7 N. H., 171; When the waste and damages are thus ascertained, either by confession, verdict, or inquiry of the sheriff, judgment is given in pursuance of the statute of Gloucester, c. 5, that the plaintiff shall recover the place wasted; for which he has immediately a writ of seisin, provided the particular estate be still sub[*229] sisting (for, if it be expired, *there can be no forfeiture of the land), and also that the plaintiff shall recover treble the damages assessed by the jury, which he must obtain in the same manner as all other damages, in actions personal and mixed, are obtained, whether the particular estate be expired, or still in being. CHAPTER XV. OF SUBTRACTION. SUBTRACTION, which is the fifth species of injuries affecting a man's 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 in 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. L. Fealty, suit of court, and rent, are duties and services usually issuing and arising ratione tenure, being the conditions upon which the ancient 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 feudal 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 misdemeanors 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 [*231] 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 seigniory. The general remedy for all these is by distress; and it is the only remedy at the common law for the first two 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, Ripka v. Sergeant, 7 W. and S., 1. The tenant may also sue for the injury to his possession. Id. Or the landlord may hold the tenant responsible for the injury by the stranger. Fay v. Brewer, 3 Pick., 203. Threatened waste may be restrained by injunction. 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 it [*232] 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 Ann. c. 14, and 5 Geo. III, c. 17, actions of debt may now be brought at any time to recover 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 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. (1) 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 Gloucester, 6 Edward I, c. 4, and of Westm. 2, 13 Edw. I, cc. 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. (f) 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, he might be ejected from such emphyteutic lands. (g) But by the statute of Gloucester, 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 [*233] 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 Gloucester has provided farther, 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 for rent, to serve an ejectment on their tenants, when half a year's rent is due, and there is no suffi it (c) 1 Roll. Abr. 595, Cod. 66, 2. (d) F. N. B. 195. (e) Ibid. 151. (f) Ibid. 208. (k) See page 206. (1) It is since abolished by statute 3 and 4 Wm. IV, c. 27. VOL. II-17 129 66 cient 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 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, as it evidently proceeds upon feudal principles, [*234] *so it is expressly to be met with in the feudal constitutions: (m) 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; (n) which is an ancient writ founded on that chapter (0) 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 hand; 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 quitted (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) (2) (2) The several writs here mentioned were formally abolished by statute 3 and 4 Wm. IV, c. 27. They were before not the usual remedies for these wrongs. An action on the case might have been maintained by the tenant at the common law against the landlord for distraining for more rent than was due: Taylor Land. and Ten., § 729, et seq.; and if the tenant through any error or mistake paid to the landlord more than was due, he might recover it back in an action for money had and received to his use, as paid without consideration. For the general principle in these cases, see Union Bank v. Bank of U. S., 3 Mass., 74; Bank of Commerce v. Union Bank, 3 N. Y., 230; Little v. Derby, 7 Mich., 325. And if an undertenant is distrained upon, or is compelled in order to protect his own interest to pay rent to the original landlord, he is entitled to treat the payment as one made to the use of the mesne tenant, and may deduct it from his own rent, or recover it back from the mesne tenant if nothing was owing to him. As to the obligation of the mesne tenant to indemnify the under-tenant generally, see Taylor Land. and Ten., § 738. *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 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 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 il lud facere debet, et solet, 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; 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. And thus much for the injury of sub traction. CHAPTER XVI. OF DISTURBANCE. THE sixth and last species of real injuries is that of disturbance; which is asually 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 tenures. 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 [*237] damages by a special action 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 |