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. Kinds of Remedy. 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. Writ of Estrepement. 1. Estrepement is an old French word, signifying the same as waste or extirpation; and the writ of estrepement lay at the common law, after judgment obtained in action real, and before possession was delivered by the sheriff, to stop any waste which the vanquished party might be tempted to commit in lands which were determined to be no longer his. But as in some cases the demandant may be justly apprehensive that the tenant may make waste or estrepement pending the suit, well knowing the weakness of his title, therefore the statute of Glocester gave another writ of estrepement pendente placito, commanding the sheriff firmly to inhibit the tenant "ne faciat vastum vel estrepementum pendente placito dicto indiscusso." Besides this preventive redress at common law, the courts of equity, upon bill exhibited therein, complaining of waste and destruction, will grant an injunction or order to stay waste, until the defendant shall have put in his answer, and the court shall thereupon make further order. Which is now become the most usual way of preventing waste. Writ of Waste. 2. A writ of waste is also an action, partly founded upon the common law, and partly upon the statute of Glocester; and may be brought by him who 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 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. 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 defendant on the trial may give in evidence anything that proves there was no waste committed, as that the destruction hap pened by lightning, tempest, the king's enemies, or other inevitable accident. But it is no defense to say that a stranger did the waste, for against him the plaintiff hath no remedy, though the defendant is entitled to sue such stranger in an action of trespass vi et armis, and shall recover the damages he has suffered in consequence of such unlawful act. [The reversioner may maintain a case against such stranger.] Definition. 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, 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. I. Fealty, suit of court, and rent, are duties and services usually issuing and arising ratione tenurae, being the conditions upon which the ancient lords granted out their lands to their feudatories. The Remedy. 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. A distress is the 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, for this is the only remedy to which the party aggrieved is entitled, and therefore it ought to be such as is sufficiently compulsory. Among other remedies for subtraction of rents or services is action of debt, for the breach of this express contract. 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. Chapter XVI. OF DISTURBANCE. Definition and Divisions. The sixth and last species of real injuries is that of disturb ance; 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, viz.: 1. Disturbance of franchises. 2. Disturbance of common. 3. Disturbance of ways. 4. Disturbance of tenure. 5. Disturbance of patronage. Disturbance of Franchises. 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. 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 of toll may take a distress if he pleases. Disturbance of Common. II. 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. In general in case the beasts of a stranger, or the uncommonable cattle of a commoner, 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 done be anything 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 pasture 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. The usual remedies for surcharging the common, are either by distraining so many of the beasts as are above the number allowed, or else by an action of trespass, both of which may be had by the lord; or lastly, by a special action on the case for damages; in which any commoner may be plaintiff. There is yet another disturbance of common, when the owner of the land, or other person, so encloses, or otherwise obstructs it that the commoner is precluded from enjoying the benefits to which he is by law entitled. This kind of disturbance does indeed amount to a disseisin, and if the commoner chooses to consider it in that light, the law has given him an assize of novel disseisin, against the lord, to recover the possession of his common. Or it has given a writ of quod permittat, against any stranger, as well as the owner of the land, in case of such 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 choose to bring a real action to recover seisin, or to try the right, he may (which is the easier and more usual way) bring an action on the case for his damages, instead of an assize or a quod permittat. Disturbance of Ways. III. The third species of disturbance, that of ways, is very similar in its nature to the last; it principally happening when a person who hath a right to a way over another's grounds, 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, or at least not in so commodious a manner as he might have done. The remedy, therefore, for these disturbances is not by assize or any real action, but by the universal remedy of action on the case to recover damages. Disturbance of Tenure. IV. The fourth species of disturbance is that of disturbance of tenure, or breaking of that connection which subsists between the lord and his tenant, and to which the law pays so high a regard, that it will not suffer it to be wantonly dissolved by the act of a third person. The law gives the lord a reparation in damages against the offender by a special action on the case. Disturbance of Patronage. V. The fifth and last species of disturbance, but by far the most considerable, is that of disturbance of patronage; which is a hindrance or obstruction of a patron to present his clerk to a benefice. Chapter XVII. OF INJURIES PROCEEDING FROM, OR AFFECTING THE CROWN. 254-270. Crown Injuries-The Leading Principle. I proceed now to inquire into the mode of redressing injuries to which the crown itself is a party. In treating therefore of these, we will consider first the manner of redressing those wrongs or injuries which a subject may suffer from the crown, and then of redressing those which the crown may receive from a subject. I. That the king can do no wrong, is a necessary and fundamental principle of the English constitution; meaning only, as has formerly been observed, that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the king; nor is he, but his ministers, accountable for it to the people; and, secondly, that 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. And, as it presumes that to know of any injury and to redress it are inseparable in the royal breast, it then issues as of course, in the king's own name, his orders to his judges to do justice to the party aggrieved. Methods of Obtaining Redress from the Crown. The common-law methods of obtaining possession or restitution from the crown, of either real or personal property, are: 1. By petition de droit, or petition of right. 2. By monstrans de droit, manifestation or plea of right: both of which may be preferred or prosecuted either in the chancery or exchequer. Petition de Droit. The former is of use, where the king is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the crown, grounded on facts disclosed in the petition itself; in which case he must be careful to state truly the whole title of the crown, otherwise the petition shall abate; and then, upon this answer being endorsed or underwritten by the king, soit droit fait al partie (let right be done to the party), a commission shall issue to inquire of the truth of this suggestion; after the return of which, the king's attorney is at liberty to plead in bar; and the merits shall be determined upon issue or demurrer, as in suits between subject and subject. Monstrans de Droit. But where the right of the party, as well as the right of the crown, appears upon record, there the party shall have monstrans de droit, which is putting in a claim of right grounded on facts already acknowledged and established, and praying the judgment of the court, whether upon those facts the king or the subject hath the right. Methods of Obtaining Redress of Subject. II. The methods of redressing such injuries as the crown may receive from the subject are: I. By such usual common-law actions as are consistent with the royal prerogative and dignity. Inquest of Office. 2. By inquisition or inquest of office; which is an inquiry |