fo it is exprefsly to be met with in the feodal conftitutions TM ❝ vafallis, qui abnegavit feudum ejufve conditionem, exspoż "liabitur."

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 oppreflion 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 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 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 seifin 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 afcertaining 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 anceftors, by plea to an avowry in replevin 9. 2. The writ of mefne, de medio; which is alfo in the nature of a writ of right, and lies, when upon a fubinfeudation the mefne, or middle lord', fuffers his under-tenant, or tenant paravail, to be diftreined upon by the lord paramount, for the rent due to him from the mesne lord'. And in such 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 fhall be forejudged of his meínalty, and the tenant fhall hold immediately of the lord paramount himfelf".

II. THUS far of the remedies for fubtraction of rents or other fervices due by tenure. There are alfo other fervices, due by antient custom and prefeription 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 fuit, (their fecta, a fequendo) from the antient mill. This is not only a damage, but an injury, to the owner; because this prefcription might have a very reasonable foundation viz. upon the erection of fuch 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 fhall 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 caufe to the contrary in which action the validity of the prescription may be tried, and if it be found for the owner, he fhall recover damages against the defendant. In like manner, and for like reafons, the regifter 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 cuftom) that all the inhabitants should ufe and refort to it, when erected. But befides thefe special remedies for fubtractions, to compel the specific performance of the fervice due by custom: an action on the cafe will alfo lie for all of them, to repair the party injured in damages. And thus much for the injury of subtraction.

CHAPTER THE SIXTEENTH.

OF DISTURBANCE.

TH

HE fixth and laft fpecies of real injuries is that of difturbance; which is ufually 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 franchifes 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 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 ob structs 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 case 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

therefore entitled to fue for damages by a special action on the cafe: or, in cafe of toll, may take a distress if he pleases".

II. THE difturbance of common comes next to be confidered; 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 fame inconvenience. But the lord of the foil may (by custom or prescription, but not without) put a ftranger's cattle into the common; and also, by a like prescription for common appurtenant, cattle that are not commonable may be put into the common". The lord alfo of the foil may justify making burrows therein, and putting in rabbets, fo as they do not encrease to fo large a number as totally to destroy the common. But in general, in cafe the beafts of a stranger, or the uncommonable cattle of a commoner, be found upon the land, the lord or any of the commoners may diftrein them damage-feafant: or the commoner may bring an action on the cafe to recover damages, provided the injury done be any thing confiderable: fo 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 foil only for the entry and trefpafs committed.

ANOTHER disturbance of common is by furcharging it; or putting more cattle therein than the pasture and herbage will fuftain, or the party hath a right to do. In this cafe he that furcharges does an injury to the reft of the owners, by depriving them of their refpective portions, or at least contract

Book III. ing them into a smaller compass. This injury by furcharging can properly speaking only happen, where the common is appendant or appurtenant, and of courfe limitable by law or where, when in grofs, it is exprefsly limited and certain : for where a man hath common in grofs, fans nombre or without fint, he cannot be a surcharger. However, even where a man is faid to have common without ftint, ftill there must be left fufficient for the lord's own beafts: for the law will not fuppofe that, at the original grant of the common, the lord meant to exclude himself.

THE ufual remedies, for furcharging the common, are either by distreining so many of the beasts as are above the number allowed, or else by an action of trefpafs; both which may be had by the lord: or laftly, by a special action on the cafe for damages; in which any commoner may be plaintiffj. But the antient and most effectual method of proceeding is by writ of admeasurement of pafture. This lies, either where a common appurtenant or in grofs is certain as to number, or where a man has common appendant or appur tenant to his land, the quantity of which common has never yet been afcertained. In either of these cafes, 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, being directed to the sheriff, (vice comiti) and not to be returned to any superior court, till finally executed by him. It recites a complaint, that the defendant hath furcharged, fuperoneravit, the common: and therefore commands the fheriff to admeasure and apportion it; that the defendant may not have more than belongs to him, and that the plaintiff may have his rightful fhare. And upon this fuit all the commoners shall be admeasured, as well those who have not, as those who have, furcharged the common; as well the plaintiff, as the defendant. The execution of this writ must be by a jury of twelve men, who are upon their

h See book II. ch. 3.

I Roll. Abr. 399.

į Freem. 273.

k 2 Inft. 369. Finch. L. 314. 1 F. N. B. 125.

oaths