oaths to afcertain, under the fuperintendence of the sheriff, what and how many cattle each commoner is entitled to feed. And the rule for this admeasurement is generally un derstood to be, that the commoner shall not turn more cattle upon the common, than are fufficient to manure and stock the land to which his right of common is annexed; or, as our antient law expreffed it, such cattle only as are levant and couchant upon his tenement: which being a thing uncertain before admeasurement, has frequently, though erroneously occafioned this unmeasured right of common to be called a common without ftint or fans nombre "; a thing which, though poffible in law, does in fact very rarely exist.

IF, after the admeasurement has thus ascertained the right, the fame defendant furcharges the common again, the plaintiff may have a writ of fecond furcharge, de fecunda superoneratione, which is given by the statute Westm. 2. 13 Edw. I. c. 8. and thereby the sheriff is directed to inquire by a jury, whether the defendant has in fact again furcharged the common contrary to the tenor of the last admeasurement: and if he has, he fhall then forfeit to the king the fupernumerary cattle put in, and alfo fhall pay damages to the plaintiff. This process feems highly equitable: for the first offence is held to be committed through mere inadvertence, and therefore there are no damages or forfeiture on the firft writ, which was only. to ascertain the right which was difputed: but the second offence is a wilful contempt and injustice; and therefore punifhed very properly with not only damages, but also forfeiture. And herein the right, being once fettled, is never again difputed; but only the fact is tried, whether there be any fecond furcharge or no: which gives this neglected procceding a great advantage over the modern method, by action on the cafe, wherein the quantum of common belonging to the defendant must be proved upon every fresh trial, for every repeated offence.

THERE is yet another difturbance of common, when the owner of the land, or other perfon, fo enclofes or otherwise obftructs it, that the commoner is precluded from enjoying the benefit, to which he is by law intitled. This may be done, either by erecting fences, or by driving the cattle off/ the land, or by ploughing up the foil of the common 9. Or it may be done by erecting a warren therein, and ftocking it with rabbets in fuch quantities, that they devour the whole herbage, and thereby destroy the common. For in fuch case, though the commoner may not destroy the rabbets, yet the law looks upon this as an injurious disturbance of his right, and has given him his remedy by action against the owner'. This kind of disturbance does indeed amount to a diffeifin, and if the commoner chufes to confider it in that light, the law has given him an affize of novel diffeifin, against the lord, to recover the poffeffion of his common 3. Or it has given a writ of quod permittat, against any stranger, as well as the owner of the land, in cafe of fuch a disturbance to the plaintiff as amounts to a total deprivation of his common; whereby the defendant shall be compelled to permit the plaintiff to enjoy his common as he ought. But if the commoner does not chufe to bring a real action to recover seifin, or to try the right, he may (which is the eafier and more usual way) bring an action on the cafe for his damages, instead of an aflife or a quod permittat".

THERE are cafes indeed, in which the lord may enclofe and abridge the common; for which, as they are no injury to any one, fo no one is entitled to any remedy, For it is provided by the ftatute of Merton, 20 Hen. III. c. 4. that the lord may approve, that is, enclose and convert to the uses of husbandry, (which is a melioration or approvement) any wafte grounds, woods, or paftures, in which his tenants. have common appendant to their eftates; provided he leaves

fufficient common to his tenants, according to the proportion of their land. And this is extremely reasonable: for it would be very hard if the lord, whofe ancestors granted out thefe eftates to which the commons are appendant, fhould be precluded from making what advantage he can of the rest of his manor; provided such advantage and improvement be no way derogatory from the former grants. The ftatute Weftm. 2. 13 Edw. I. c. 46. extends this liberty of approv ing, in like manner, against all others that have common appurtenant, or in grofs, as well as against the tenants of the lord, who have their common appendant; and farther enacts, that no affife of novel diffeifin, for common, fhall lie against a lord for erecting on the common any windmill, fheephoufe, or other neceffary buildings therein specified: which, fir Edward Coke fays ", are only put as examples; and that any other neceffary improvements may be made by the lord, though in reality they abridge the common, and make it less fufficient for the commoners. And lastly by ftatute 29 Geo. II. c. 36. and 31 Geo. II. c. 41. it is particularly enacted, that any lords of waftes and commons, with the confent of the major part, in number and value, of the commoners, may inclofe any part thereof, for the growth of timber and underwood.

III. THE third fpecies of difturbance, that of ways, is very fimilar in it's nature to the laft: it principally happening when a perfon, who hath a right to a way over another's grounds, by grant or prescription, is obstructed by inclofures, or other obftacles, or by ploughing acrofs it; by which means he cannot enjoy his right or way, or at leaft not in so commodious a manner as he might have done. If this be a way annexed to his eftate, and the obftruction is made by the tenant of the land, this brings it to another species of injury; for it is then a mufance, for which an aflife will lie, as mentioned in a former chapter. But if the right of way, thus obftructed by the tenant, be only in grofs, (that is, annexed to a man's perfon and unconnected with any lands or tene

w 2 Inft. 476.

x ch. 13. p. 218.

Q3

ments

ments) or if the obstruction of a way belonging to an house or land is made by a stranger, it is then in either cafe merely a disturbance: for the obftruction of a way in grofs is no de triment to any lands or tenements, and therefore does not fall under the legal notion of a nufance, which must be laid, ad nocumentum liberi tenementi; and the obstruction of it by a ftranger can never tend to put the right of way in dispute : the remedy therefore for these disturbances is not by affife or any real action, but by the universal remedy of action on the cafe to recover damages 2.

IV. THE fourth fpecies of disturbance is that of disturbance of tenure, or breaking that connexion, which fubfifts between the lord and his tenant, and to which the law pays fo high a regard, that it will not suffer it to be wantonly diffolved by the act of a third person. To have an estate well tenanted is an advantage that every landlord must be very sensible of; and therefore the driving away of a tenant from off his estate is an injury of no fmall confequence. So that if there be a tenant at will of any lands or tenements, and a stranger either by menaces and threats, or by unlawful diftreffes, or by fraud and circumvention, or other means, contrives to drive him away, or inveigle him to leave his tenancy, this the law very justly conftrues to be a wrong and injury to the lord', and gives him a reparation in damages against the offender by a special action on the cafe.

V. THE fifth and laft fpecies of difturbance, but by far the most confiderable, is that of disturbance of patronage; which is an hindrance or obftruction of a patron to present his clerk to a benefice,

THIS injury was diftinguished at common law from another fpecies of injury, called ufurpation; which is an abfolute oufter or difpoffeffion of the patron, and happens when a stranger, that hath no right, prefenteth a clerk, and he is thereupon

y F. N. B. 183.

a Hal. Ana!. ç. 40. 1 Roll. Abr,

Hale on F. N. B, 183, Lutw. 111. 108,

admitted

admitted and inftituted. In which cafe, of ufurpation, the patron loft by the common law not only his turn of presenting pro hac vice, but also the abfolute and perpetual inheritance of the advowfon, fo that he could not prefent again upon the next avoidance, unless in the mean time he recovered his right by a real action, viz. a writ of right of advowson. The reafon given for his losing the present turn, and not ejecting the ufurper's clerk, was, that the final intent of the law in creating this fpecies of property being to have a fit person to celebrate divine service, it preferred the peace of the church (provided a clerk were once admitted and inftituted) to the right of any patron whatever. And the patron also lost the inheritance of his advowfon, unless he recovered it in a writ of right, because by fuch ufurpation he was put out of poffeffion of his advowfon, as much as when by actual entry and oufter he is diffeifed of lands or houses; fince the only poffeffion, of which an advowson is capable, is by actual prefentation and admiffion of one's clerk. As therefore, when the clerk was once inftituted (except in the cafe of the king, where he must also be inducted 4) the church became abfolutely full; fo the ufurper by such plenarty, arifing from his own presentation, became in fact feifed of the advowfon: which feifin it was impoffible for the true patron to remove by any poffeffory action, or other means, during the plenarty or fullness of the church; and when it became void afresh, he could not then prefent, fince another had the right of poffeffion. The only remedy therefore, which the patron had left, was to try the mere right in a writ of right of advowson ; which is a peculiar writ of right, framed for this fpecial purpofe, but in every other respect correfponding with other writs of right: and if a man recovered therein, he regained the poffeffion of his advowson, and was entitled to present at the next avoidance. But in order to fuch recovery he must allege a prefentation in himself or fome of his ancestors, which proves him or them to have been once in poffeflion: for, as a grant of the advowson, during the fullness of the e F. N. B. 30. f Ibid. 36.

b Co. Litt. 227. c 6 Rep. 49. Ibid.

church,