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 suffer 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 such freehold rents. 2. An affife of mort d'anceftor 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 fuppofe himself oufted or diffeised thereof. This is now feldom heard of; and all other real actions to recover rent, being in the nature of writs of right, and therefore more dilatory in their progrefs, are entirely difufed, 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 custom, or tenure, for his land. This compels a fpecific payment or performance of the rent or fervice; 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 fpiritual fervice, as reading prayers or giving alms, and neglects it; in either of which cafes, if the ceffer or neglect have conti nued for two years, the lord or donor and his heirs shall 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 Glocefter, the ceffavit does not lie for lands let upon fee-farm rents, un c1 Roll. Abr. 595. F. N. B. 195. e Ibid. 151. f Ibid. 208. lefs k lefs they have lain fresh and uncultivated for two years, and there be not fufficient diftrefs upon the premifes; or unless the tenant hath fo enclosed the land, that the lord cannot come upon it to diftrein". For the law prefers the fimple and ordinary remedies, by diftrefs or by the actions juft now mentioned, to this extraordinary one of forfeiture for a ceffavit; and therefore the fame ftatute of Glocefter has provided farther, that upon tender of arrears and damages before judg‐ ment, and giving fecurity for the future performance of the fervices, the procefs fhall be at an end, and the tenant fhall retain his lands; to which the ftatute of Weftm. 2. conforms, fo far as may stand with convenience and reason of law 1. It is easy to obferve, that the ftatute * 4 Geo. II. c. 28. (which permit's landlords who have a right of re-entry for non-payment of rent, to ferve an ejectment on their tenants, when half a year's rent is due, and there is no fufficient 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 cofts within fix months after. And the fame remedy is, in fubstance, 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 shall defert the demifed premises, leaving the fame uncultivated or unoccupied, fo that no fufficient distress can be had two juftices of the peace (after notice affixed on the premises for fourteen days without effect) may give the landlord poffeffion thereof, and thenceforth the leafe fhall be void. 5. There is also another very effectual remedy, which takes place when the tenant upon a writ of aflife for rent, or on a replevin, disowns or disclaims his tenure, whereby the lord lofes his verdict: in which cafe the lord may have a writ of right, fur disclaimer, 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 retalliating 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. 209. 2 Inft. 298. * See page 206. 1 2 Inst. 401. 460. Finch. L. 270, 271. fo it is exprefsly to be met with in the feodal constitutions": "vafallus, qui abnegavit feudum ejufve conditionem, exspoliabitur." AND, as on the one hand the antient law provided these feveral remedies to obviate the knavery and punish the ingratitude 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 fervices than are really due to the lord; being itfelf of the prohibitory kind, and yet in the nature of a writ of right P. It lies, where the tenant in fee-fimple and his ancestors have held of the lord by certain fervices; and the lord hath obtained feifin of more or greater services, by the inadvertent payment or performance of them by the temant himfelf. Here the tenant cannot in an avowry avoid the lord's poffeffory right, because of the feifin given by his own hands; but is driven to this writ, to devest the lord's poffeffion, and establish the mere right of property, by afcertaining the fervices, and reducing them to their proper standard. 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 ancestors, by plea to an avowry in replevin 1. 2. The writ of mesne de medio; which is alfo in the nature of a writ of right', and lies, when upon a fubinfeudation the mefne, or middle lords, fuffers 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 mefne 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 himfelf". II. THUS far of the remedies for fubtraction of rents or other services due by tenure. There are also other services, due by antient cuftom and prescription only. Such is that of doing fuit to another's mill: where the perfons, refident 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 suit, (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 molendinumTM, 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 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 hujufmodi; for fuit due to his furnum, his public oven or bakehouse; or to his torrale, his kiln, or malthouse; when a perfon's ancestors have erected a convenience of that fort for the benefit of the neighbourhood, upon an agreement (proved by immemorial cuftom) that all the inhabitants should use and refort to it, when erected. But befides these special remedies for fubtractions, to compel the fpecific performance of the service due by cuftom: an action on the cafe will alfo lie for all of them, to repair the party injured in damages (1). And thus much for the injury of fubtraction. w F.N. B. 123. * Co. Entr. 461. 7 fol. 153. (1) This is now the only action in ufe for most of the injuries fpecified in this chapter; the antient appropriate writs have become fo obfolete, that few fpecial pleaders, if any, would know how to proceed in them. 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 shall confider five forts of this injury; viz. 1. Disturbance of franchifes. 2. Difturbance 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 species of franchise whatsoever; 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 refuses to pay me the accustomed toll; or hinders me from feifing the waif or eftray, 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 arifing from fuch his franchise are diminished. To remedy which, as the law has given no other writ, he is a Finch. L. 187. therefore |