court shall thereupon make further order. Which is now become the most usual way of preventing waste. 2. A writ of wasted is also an action, partly founded upon the common law, and partly npon the statute of Glocester;(r) and may be brought by him wbo hath the immediate estate of inheritance in reversion or remainder, against the tenant for life, tenant in dower, tenant by curtesy, or tenant for years. This action is also maintainable in pursuance of statute(s) Westm. 2, by one tenant in common of the inheritance against another, who makes waste in the estate holden in common. The equity of which statute extends to joint-tenants, but not to coparceners; because by the old law coparceners might make partition, whenever either of them thought proper, and thereby prevent future waste, but tenants in common and joint-tenants could not; and therefore the statute gave them this remedy, compelling the defendant either to make partition, and take the place wasted to his own share, or to give security not to commit any further waste.(t) But these tenants in common and joint-tenants are *not liable to the penalties of the statute of Glocester, which extends only to such [*228 as have life-estates, and do waste to the prejudice of the inheritance. The waste, however, must be something considerable ; for if it amount only to twelve pence, or some such petty sum, the plaintiff shall not recover in an action of waste; nam de minimis non curat lex. (u) This action of waste is a mixed action; partly real, so far as it recovers land; and partly personal, so far as it recovers damages. For it is brought for both those purposes; and, if the waste be proved, the plaintiff shall recover the thing or place wasted, and also treble damages by the statute of Glocester. The writ of waste calls upon the tenant to appear and show cause why he hath committed waste and destruction in the place named, ad exhæredationem, to the disinherison, of the plaintiff.(w). And if the defendant makes default, or does not appear at the day assigned him, then the sheriff is to take with him a jury of twelve men, and go in person to the place alleged to be wasted, and there inquire of the waste done, and the damages; and make a return or report of the same to () 6 Edw. I. c. 5. O 13 Edw. I. c. 22. () 2 Inst. 403, 401. (") Finch, L. 29. . And is now the only one, the writ of estrepement having been abolished. 3 & 4 W. IV. c. 27, 8. 36.-STEWART. * The action or writ of waste is now very seldom brought, and has given way to a much more expeditious and easy remedy, by an action on the case in the nature of waste. The plaintiff derives the same benefit from it as from an action of waste in the tenuit, where the term is expired and he has got possession of his estate, and consequently can only recover damages for the waste; and though the plaintiff cannot in an action on the case recover the place wasted, where the tenant is still in possession, as he may do in an action of waste in the tenet, yet this latter action was found by experience to be so imperfect and defective a mode of recovering seisin of the place wasted that the plaintiff obtained little or no advantage from it; and therefore, where the demise was by deed, care was taken to give the lessor power of re-entry in case the lessee committed any waste or destruction; and an action on the case was then found to be much better arlapted for the recovery of mere damages than an action of waste in the tenuit. It has also this further advantage over an action of waste, that it may be brought by him in the reversion or remainder for life or years, as well as in fee or in tail; and the plaintiff is entitled to costs in this action, which he cannot have in an action of waste. However, this action on the case prevailed at first with some difficulty. 3 Lev. 130. 4 Burr. 2141. But now it is become the usual action as well for permissive as voluntary waste. Some recent decisions have made it doubtful whether an action on the case for permissive waste can be maintained against any tenant for years. See 1 New Rep. 290. 4 Taunt. 764. 7 Taunt. 302. 1 Moore, 100, Š. C. See also 1 Saund. 323, a., n. (i.) Where the lessee even covenants not to do waste, the lessor has his election to bring either an artion on the case, or of covenant against the lessee, for waste done by him during the term. 2 Black. Rep. 1111. See, further, 2 Saund. 252, and 1 Chitty on Pl. 4th ed. 132, 133.--Cutty. s See 2 Bos. & Pul. 86. But the doctrine that the smallness of the damages given by the jury shall defeat the action does not extend to other actions. See 1 Dowl. Rep. 209. 2 Fast, 154.-CHITTY. the court, upon which report the judgment is founded.(r) For the law will die suffer so heavy a judgment, as the forfeiture and treble damages, to be passed upon a mere default, without full assurance that the fact is according as it is stated in the writ. But if the defendant appears to the writ, and afterrar suffers judgment to go against him by default, or upon a nihil diert, when be makes no answer, puts in no plea, in defence,) this amounts to a contestand the waste; since, having once appeared, he cannot now pretend ignorance of 11 charge. Now, therefore, the sheriff shall not go to the place to inquire of the fuct whether any waste has, or has not, been committed; for this is airea!y" ascertained by the silent confession of the defendant; but he shall only, ** in *229) defaults upon other actions, make inquiry of the quantum of damage The defendant, on the trial, may give in evidence any thing that proses there was no waste committed, as that the destruction happened by lizinos. tempest, the king's enemies, or other inevitable accident. (2) But it is 'n isfence to say that a stranger did the waste, for against him the plaintiff hath > a remedy; though the defendant is entitled to sue such stranger in an act:3 of trespass vi et armis, and shall recover the damages he has sutered in conm ques.e of such unlawful act.(a) When the waste and damages are thus ascertained, either by confomion, ver diet, or inquiry of the sheriff , judgment is given in pursuance of the statue of Glocester, c. 5, that the plaintif ' shall recover the place wasted,' for wheel te has immediately a writ of seisin, provided the particular estate bestill muss... (for, it it be expired, there can be no forfeiture of the land,) and also that 1.plaintiff shall recover treble the dumages assessed by the jury, which he nsobtain in the same manner as all other damages, in actions personal and 2.2tude are obtained, whether the particular estate be expired, or still in being ( Poph. 24. Cro. Eliz. IX, 290. (*) Ca. Latt. 53. (*) Law of Nin Pria 1:2 • Action on the caxe doth not lie for permissive waste. 5 Rep. 13. Ilale MSS I. case cited by lord Hale is that of the countess of Salop, who brought an ati in un tre cap against her tenant at will for negligently keeping his fire so that the head burnedl; and the whole court held that neither action on the came nor any oth = a. lav, because at common law, and before the statute of Glocester, action did try 1. Winte against tenant for life or years, or any other tenant coming in by a.?**?.. parties, and tenint at will is not within the statute. But if tenant at wils1 with his lessor to be responsible for fire by negligence or for other part **** ****, without doubt an action will be on such expres* agreeinent. The Rime teost. holds with rexpect to tenants for life or years before the statute of Gilocratet: feup ti f'18 the law did not make them liable to any action, yet it did not restrain them fr: in t. themselves liable by agreement. At the common law lessee were not an**.'m to landlords for accidental or negligent burning; for as lo tires by accuent, it 15 px? ** in Fleta that fortuna igres vel hujusmuuta arendus inopinat omncs teremta erunt; ar ils Shrewsbury's case is a direct authority to prove that tenants are emails et beg'.ro tire by negligence, Fleta, lib. i. c. 12. Then came the statute of tomater, w, misking tenants for lite and years liable to water without exception, contots' clared them answerable for destruction by fire; but now, by the 6 Annie, a an-jent law is restored, for the statute of Anne exempts all permons fruin , 1.6 accidental fire in any house, except in the case of special agreements bewern 1 and tenant. Sep 14 Geo. III. c. ix. 8. Ns. It was doubled under this staiur n!.. covenant to repair generally extends to the case of tite, and no bez ome an ası' within the statuse; and therefore, where it is intended that the tenant shall notes. it has been usual in the covenant for ripuiring exprexaly to except as a seletis ly See llar, (o. Liits, a.-'URITIAN But it is now settled that a general unqualified covenant to repair sulyats the te. to the expense of pbuilding. 6 T. R. 6*. The tenant at all events 2011'll .. in par pent. 3 An-t. 67. 3 bowl. 253. 1 T.R. 310). 4 Taunt. 4. l* Vee Jr 115 : The verruct for the plantitf in a writ of waste ought to and the place was Binch. R. 42. HITTY. • But this writ of wie has also been aloli-bed, by 3 & 4 W. IV., 13. and 1 now only remain therefore the two remedies already referred to the first fartriran waste by obtaining an injunction in a court of equity; and the second, to obta na... For the water after it has been committed, by an action on the camp in a costi? which action la not only against the tenant, but against any stranger by wh tu an of waste has been committed. SILW ART. CHAPTER XV. OF SUBTRACTION. *SUBTRACTION, which is the fifth species of injuries affecting a man's real property, happens when any person who owes any suit, duty, custom, [*230 or service to another withdraws or neglects to perform it. It differs from a disseisin, in that this is committed without any denial of the right, consisting merely of non-performance; that strikes at the very title of the party injured, and amounts to an ouster or actual dispossession. Subtraction, however, being clearly an injury, is remediable by due course of law; 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 antient lords granted out their lands to their feudatories, whereby it was stipulated that they and their heirs should take the oath of fealty or fidelity to their lord, which was the feodal bond, or commune vinculum, between lord and tenant; that they should do suit or duly attend and follow the lord's courts, and there from time to time give their assistance, by serving on juries, either to decide the property of their neighbours in the court-baron or correct their misdemeanours in the court-leet; and, lastly, that they should yield to the lord certain annual stated returns, in military attendance, in provisions, in arms, in matters of ornament or pleasure, in rustic employments or *prædial labours, or (which is instar omnium) in money, which will provide all the rest; all which are [*231 comprised under the one general name of reditus, return, or rent. And the subtraction or non-observance of any of these conditions, by neglecting to swear fealty, to do suit of court, or to render the rent or service reserved, 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. The nature of distresses, their incidents and consequences, we have before more than once explained :(a) it may here suffice to remember that they are a taking of beasts or other personal property by way of pledge to enforce the performance of something due from the party distrained upon. And, for the most part, it is provided that distresses be reasonable and moderate; but in the case of distress for fealty or suit of court, no distress can be unreasonable, immoderate, or too large :(6) 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 also 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. But for a freehold rent, reserved on *a lease for life, &c., no action of debt lay by the common law during the continuance of the freehold out of which [ *232 it issued ;(C) for the law would not suffer a real injury to be remedied by an action that was merely personal. However, by the statutes 8 Anne, c. 14, and 5 Geo. III. c. 17, actions of debt may now be brought at any time to recover See pages 6, 148. () Finch, L. 285. (9) 1 Roll. Abr. 595. such freehold rents. 2. An assize of mort d'ancestor or novel disseisin will lie of rents as well as of lands,(d) if the lord, for the sake of trying the possessTV right, will make it his election to suppose himself ousted or disseised then This is now seldom heard of; and all other real actions to recover rents, leing in the nature of writs of right, and therefore more dilatory in their prures, are entirely disused, though not formally abolished by law. Of this is however, is, 3. The writ de consuetudinibus et servitiis, which lies for the lont against his tenant who withholds from him the rents and services due by cus tom or tenure for his land(e) This compels a specitic payment or perforinanın of the rent or service; and there are also others, whereby the lord shall reewer the land itself in lieu of the duty withheld. As, 4. The writ of ceasucit; which lies by the statutes of Glocester, 6 Edward I. c. 4, and of Westm. 2, 13 bin I. c. 21 and 41, when a man who holds lands of a lord by rent or other services neglects or ceases to perform his services for two years together; or where a religious house hath lands given it on condition of performing some certain spiritual service, as reading prayers or giving alms, and neglects it; in either of which cases, if the cesser or neglect have continued for two years, the based or donor and his heirs shall have a writ of cessarit to recover the land its :f, eo quod tenens in faciendis servitiis per biennium jam cresarit(s) In like manner, by the civil law, if a tenant who held lands upon payment of rent or servir, or "jure emphyteutico," neglected to pay or perform them per totum triennium, he might be ejected from such emphyteutic' lands.(g) But, by the statute of Glocester, the cresurit does not lie for lands let upon fee-farm rents, unless they *233 ] have lain fresh and uncultivated for two years, and there be not sut cient distress upon the premises; or unless the tenant hath so enebrared the land that the lord cannot come upon it to distrain. h) For the law preters the simple and ordinary remedies by distress or by the actions just now !!." I tioned in this extraordinary one of forteiture for a cessarit: and therefore the same statute of Glocester has provided further, that upon tender of' arrears and damages before judgment, and giving security for the future perfisrinanse of the services, the process shall be at an end, and the tenant shall rrtain : land ; to which the statute of Westm. 2 conforms so far as may mand wib convenience and reason of law.(i) It is easy to observe that the statuse k. 4 Geo. II. c. 28 (which permits landlords who have a right of re entry for 15 payment of rent to serve an ejectment on their tenants when halt a year rent is due and there is no sufficient distress on the premises) is in me measure copied from the antient writ of cessarit: especially as it may be al.. fied and put an end to in a similar manner, by tender of the rent and come within six months after. And the same remedy is, in subutance, aidopted by statute 11 Geo. II. c. 19, $ 10,' which enacts that where any tenant at mara rent shall be one year's rent in arrear, and shall desert the dem! premises, leaving the same uncultivated or unoccupied, so that no sathe 19": dintre can be havi; two justices of the peace initer notice attixed on te premines for fourteen days without effect i may give the landlord pemes: 0 thereof, and thencetorth the lease shall be roid. 5. There is alwi anotar very effectual remedy, which takes place when the tenant upon a wrt of assize for rent, or on a replevins, disowns or disclaims his tenuris, where dig the lord loses his verdict; in which case the lord may have a writ of riti, deurlaimer, grounded on this denial of tenure; and shall upon promet of t? tenure recover back the land itself so holden, as a punishment to the treat for such him falme disclaimerid This piece of retaliating justive, whereby tie tenant who endeavours to defraud his lord is himself deprived of the elale, (PNR 19. (Lom Ian "Niww formally aloliabord, 3 & 4 W. IV. c. , . 36.-STEWART. * And are by 57 Geo III. c. 52, whrh gives similar power though only half a year a rent is in arrear, and although no right of re-entry be reserved. Cuirtr. low as it evidently proceeds upon feodal principles, *so it is expressly to be met with in the feodal constitutions :(m) “vasallus, qui abnegavit [*234 fendum ejusve conditionem, erspoliabitur.” And, as on the one hand the antient law provided these several remedies to obviate the knavery and punish the ingratitude of the tenant, so on the other hand it was equally careful to redress the oppression of the lord; by furnishing, 1. The writ of ne injuste vexes ;(n) which is an antient writ founded on that chapter(o) of magna carta," which prohibits distresses 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-simple and his ancestors have held of the lord by certain services, and the lord hath obtained seisin of more or greater services, by the inadvertent payment or performance of them by the tenant himself. Here the tenant cannot in an avowry avoid the lord's possessory right, because of the seisin given by his own hands; but is driven to this writ, to devest the lord's possession, and establish the mere right of property, by ascertaining the services, and reducing them to their proper standard. But this writ does not lie for tenant in tail; for he may avoid such seisin of the lord, obtained from the payment of his ancestors, by plea to an arowry in replevin.(q) 2. The writ of mesne, de medio; which is also in the nature of a writ of right,(r) and lies, when upon a subiņfeudation the mesne, or middle lord,(s) suffers his under-tenant, or tenant paravail, to be distrained upon by the lord paramount, for the rent due to him from the mesne lord.(t) And in such case the tenant shall have judgment to be acquitted (or indemnified) by the mesne 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 shall hold immediately of the lord paramount himself.(u)' *II. Thus far of the remedies for subtraction of rents or other services due by tenure. There are also other services due by antient custom [*235 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 aceastomed to grind their corn at a certain mill; and afterwards any of them go to another mill, and withdraw their suit (their secta, a sequendo) from the antient mill. This is not only a damage, but an injury, to the owner; because this prescription might have a very reasonable 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 secta ad molendinum,(u) commanding the defendant to do his suit at that mill, quam ad illud facere debet, et solet, or show good cause to the contrary: in which action the (-) Feud. 1, 2, t. 26. (+) Booth, 136. See book ii. ch. 5, pages 59, 60. : Lord Coke (2 Inst. p. 21) expressly denies this, and cites the writ from Glanville, and says it is mentioned in the Mirror.--COLERIDGE. * At common law an action on the case may be supported by a tenant, or third person, against a landlord for distraining for more rent than is due; and that is now the usual temedy. 2 Chitty on Pl. 4th ed. 719.—Cutty. • But these several writs have long been obsolete and are now abolished. 3 & 4 W. IV. c. 27, s. 36.-STEWART. The remedy of the tenant in either of the cases above stated is now by an ordinary personal action. Where, as in the first case stated, the tenant has overpaid the landlord in ignorance of the facts, the money so overpaid is considered by the law to be money prceived for the use of the tenant, and the tenant may accordingly, provided there have buen no laches on his part, recover it in an action. Marriott vs. Hampton, 2 Smith's Leat. Cases, 4th ed. p. 325, notes. In the second case stated that of an under-tenant paying the landlord in default of the mesne tenant's doing so,—the payment by the under-tenant is considered a payment pro tanto of the rent due to his immediate landlord, the mesne tenant, and may either be deducted from the rent accruing due to the mesne landlord, (Carter vs. Carter, 5 Bingh. 406,) or sued for in an action as money paid to his use. Exall vs. Partridge, 8 T. R. 308. Bandy vs. Cartwright, 8 Exc. 913.-KERR. You I-11 161 |