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the law hath given an adequate remedy. For he, who hath the remainder for life only, is not entitled to sue for waste: since his interest may never perhaps come into possession, and then he hath suffered no injury. Yet a parson, vicar, archdeacon, prebendary, and the like, who are seized in right of their churches of any remainder, or reversion, may have an action of waste; for they, in many cases, have for the benefit of the church and of the successor a fee-simple qualified.

II. The redress for this injury of waste is of two kinds, preventive, and corrective: the former of which is by writ of estrepement, the latter by that of waste.

When the waste and damages are 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 seizin, provided the particular estate be still subsisting, (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 parcular estate be expired, or still in being.

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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. But the remedy differs according to the nature of the services; whether they be due by virtue of any tenure, or by custom only.

I. 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: this is an injury to the freehold of the lord, by diminishing and depreciating the value of his seignory.

The general remedy for all these is by distress ; and it is the only remedy at the common law for the two first of them. And for the most part it is provided that distresses be reasonable and moderate; but, in case of distress for fealty or suit of court, no distress can be unreasonable, immoderate, or too large for this is the only remedy to which the party aggrieved is entitled, 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 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.

II. Thus far of the remedies for subtraction of rents or other services 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 from the ancient mill. 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 subtraction.

CHAPTER XVI.

OF DISTURBANCE.

THE sixth and last species of real injuries is that of disturbance; which is usually a wrong done to some incorporeal hereditament, by hindering or disquieting the owners in their regular and lawful enjoyment of it. I shall consider five sorts of this injury.

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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 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 damages by a special action on the case: or, in case or toll, may take a distress if he pleases.

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11. 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 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; in which case the lord or any of the commoners may distrein them damagefeasant or the commoner may bring an action on the case to recover damages, provided the injury done be any thing considerable: so 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 soil only, for the entry and trespass committed.

Another disturbance of common is by surcharging it; or putting more cattle therein than the pasturage and herbage will sustain, or the party hath a right to do. In this case, he that surcharges does an injury to the rest of the owners, by depriving them of their respective portions, or at least contracting them into a smaller compass. This injury by surcharging can, properly speaking, only happen, where the common is appendant or appurtenant, and of course limitable by law or where, when in gross, it is expressly limited and certain for where a man hath common in gross, sans nombre or without stint, he cannot be a sur

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