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Defined. This is a wrong done to an incorporeal hereditament, by hindering or disquieting the owners in their regular and lawful enjoyment of it.
Kinds. Five Divisions. Of franchises, of common, of ways, of tenure, of patronage.
1. Of Franchise. As where a man has a franchise in keeping a fair or market, of taking toll, of seizing waifs or estrays, or any other species of franchise whatever, and he is disturbed in the lawful exercise thereof. As where one obstructs the
passage to my market, refuses to pay toll, or hinders me from seizing a waif or estray, whereby it escapes, in all such cases, there is an injury done to the legal owner; his property is damnified, and the profits arising from such franchise are diminished. To remedy this, a man may sue by a special action upon the case, or in case of toll, he may take a distress if he please.
2. Of Common, Where the right of another to his common is incommoded or diminished. This may happen, where one, not having a right of common, places his cattle on the land, and thereby robs the cattle of the commoners of their share of pasture. Or putting in animals that are not commonable, as hogs or goats.
Distress. If the beasts of a stranger be found upon the land, the lord or any of the commoners may distrain them, damage feasant, or the commoner may bring an action on the case to recover damages, provided the injury be anything considerable, so that he may lay his action with a per quod, or allege that he was thereby deprived of his common. But for a trivial trespass, the commoner has no action, but the lord has for entry and trespass committed.
Surcharging a common. Putting more cattle therein than the pasture and herbage will sustain, or the party has a right to do. The remedy is either by distraining so many of the beasts as exceed the number allowed, or else by an action of trespass, both which may be had by the lord, or by a special action on the case for damages, in which any commoner may be plaintiff. But the ancient and most effectual mode was by writ of admeasurement of pasture.
Enclosing or Obstructing a Common. This may be
done by erecting fences, or by driving the cattle off the land, or by ploughing up.the soil. A lord may enclose a common, if he injures no one.
3. Of Ways. This is somewhat similar to common. It happens, when a person, having the right of way over another's ground, by grant or prescription, is obstructed by enclosures or other obstacles, or by ploughing across it, by which means he cannot enjoy his right of way in so easy a manner, as he might have done. If this be a way annexed to his estate, and the obstruction is made by the tenant of the land, it is a nuisance, another species of injury. But if the right of way, thus obstructed by the tenant, be only in gross, that is annexed to a man's person, and unconnected with any lands, or if the obstruction be made by a stranger, it is then, in either case, merely a disturbance; for the obstruction of a way in gross is no detriment to any land, and therefore is not a nuisance, and the obstruction of it by a stranger can never tend to put the right of way in dispute. The remedy is by action on the case to recover damages.
4, Of Tenure. This is the breaking of the connection, which subsists between the landlord and the tenant, which the law will not suffer wantonly to be dissolved by a third person. The driving away of a good tenant from off an estate is an injury of no small consequence. If a stranger by menaces, or unlawful distresses, or by fraud or other means, drives a tenant away or inveigles him to leave, this is a wrong to the lord, and reparation must be made by a special action in damages on the case.
5. Of Patronage. This is the obstruction of a patron to present his clerk to a benefice. The writ of quare impedit is the only one now use l in such cases.
CHAPTER XVII.-INJURIES PROCEEDING FROM OR
AFFECTING THE CROWN.
Kinds. There may be injuries which a subject may suffer from the crown, and there may be those which the crown may receive from a subject.
I. INJURIES TO THE SUBJECT.
The King's Infallibility. That the king can do no wrong is a fundamental principle of the English constitution. Nothing that goes amiss in the conduct of public affairs can be charged personally to him. His ministers are accountable for it to the people. The prerogative of the crown extends not to do any injury, for being created for the benefit of the people, it cannot be exerted to their prejudice. When by misinformation or inadvertence, the crown is induced to invade the private rights of a subject, though no action will lie against the sovereign, yet the law permits the subject to inform the king of matters, and he orders the judges to do justice to the party aggrieved.
Restitution, how Obtained. By petition of right, and by plea of right. Both of these methods may be prosecuted either in the chancery or exchequer. If judgment be obtained, the crown is instantly out of possession. II. INJURIES TO THE CROWN. HOW REDRESSED.
1. By Usual Common Law Actions. As the king, by reason of his ubiquity, cannot be disseised or dispossessed of any real property, which is once vested in him, he can maintain no action, which supposes a dispossession of the plaintiff, such as an assize or an ejectment, but he may bring a quare impedit. So too he may bring an action of trespass for taking away his goods, but such actions are not usual for breaking his close or other injury upon his soil.
2. By Inquisition or Inquest of Office. This is an inquiry made by the king's officers, or by writ to them sent, or by commissioners, concerning any matter that entitles the king to lands or goods. This is done by a jury. As to inquire, whether the king's tenant for life died seised, whereby the reversion accrues to the king. Also in case of wreck or treasure trove. There must be an inquisition of office with a jury, except in cases of attainder for high treason, where the king shall have the forfeiture instantly. In regard to real property, if an office be found for the king, it puts him in immediate possession, without the trouble of a formal entry, provided a subject in a like case would have had the right to enter; and the king shall receive all the mesne profits from the time this his title accrued. If however the king's escheator seize lands without cause, upon returning them, the party shall have the mesne profits restored to him.
3, By Scire Facias in Chancery, Where the crown has unadvisedly granted anything by letters patent, which ought not to be granted, or where the patentee has done an act, that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought, either on the part of the king, in order to resume the thing granted, or if the grant be injurious to a subject, the king is bound of right to permit him, upon his petition, to use his royal name for repealing the patent in a scire facias. And so, if upon office untruly found for the king, he grants the land over to another, he who is grieved thereby, and traverses the office itself, is entitled, before issue joined, to a scire facias against the patentee, in order to avoid the grant.
4. By Information. This is filed by the attorney-general in the exchequer. It is a suit for recovering money or other chattels, or for obtaining satisfaction in damages for any personal wrong committed in the lands or other possessions of the
It differs from an information filed in the court of the king's bench, in that this is instituted to redress a private wrong, by which the property of the crown is affected, while the other is calculated to punish some public wrong. The most usual informations are those of intrusion and debt, the one for any trespass on the lands of the crown, the other upon any contract for moneys due the king, or for any forfeiture upon the breach of a penal statute. Usually these are left to be enforced by common informers, under qui tam actions. There is also an information in rem, as anciently, in the case of treasure trove, wrecks, waifs and estrays.
5. By Quo Warranto. This is in the nature of a writ of right for the king, against him who claims or usurps any office, franchise or liberty, to inquire by what authority he claims, in order to determine the right. It lies also in case of non-user or long neglect of a franchise, or mis-user, or abuse of it, being a writ commanding the defendant to show by what warrant he exercises such franchise, having never had a grant of it, or having forfeited it by neglect or abuse.
Effect of Judgment. In case of judgment for the defendant, he shall have an allowance of his franchise, but in case of judgment for the king, that the party is entitled to no such franchise or has disused or abused it; the franchise is either seised into the king's hands to be granted out again, or if it be not such franchise as may subsist in the hands of the crown, there is merely judgment of ouster, to turn out the party who usurped it.
Modern Procedure. The length of this process caused its practical disuse, and introduced a more modern method of prosecution, by information filed in the court of king's bench by the attorney-general, in the nature of a writ of quo warranto, wherein the process is speedier. Properly this is a criminal mode of prosecution to punish the usurper by fine, and to oust him, but has long been applied to the mere purpose of seizing the franchise or ousting the wrongful possessor, the fine being nominal only.
When Applicable. This proceeding is now applied to the decision of corporation disputes between party and party, without any intervention of the prerogative. An information in the nature of a quo warranto may now be brought, with leave of the court, at the relation of any one, who is styled the relator, against any one usurping, intruding into, or unlawfully holding any
franchise or office in any city, town or borough; it provides for its speedy determination, and directs that if the defendant is convicted, judgment of ouster and a fine may be given against him, and that the relator shall pay or receive costs.
6. By Mandamus. This is a full and effectual remedy for refusal of admission, where a person is entitled to an office or place in a corporation, and also for wrongful removal, when a person is legally possessed. These are injuries, for which, though redress may be had by other means, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ may issue from the court of king's bench, commanding upon good cause shown to the court, that the party complaining be admitted or restored to his office.
Proceedings. The statute requires, that a return be immediately made to the first writ of mandamus, which return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue or demur, and the same proceedings may be had, as if an action on the case had been brought for making a false return. After judgment obtained for the prosecutor, he shall have a peremptory writ of mandamus, to compel his admission or restitution. The writ of mandamus is in the nature of an action, wherein the party applying and succeeding may be entitled to costs, in case it be the franchise of a citizen, and also in general a writ of error may be had thereupon.