or (which is instar omnium) in money, which will provide all the rest: all which are 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. And although, in all cases, distress must be moderate, yet 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.

There are other remedies for subtraction of rents or services; but the most usual is by action of debt. 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 it issued; for the law would not suffer a real injury to be remedied by an action that was merely personal. However, by the 8 Ann. c. 14. and 5 Geo. III. c. 17. action of debt may now be brought at any time to recover such freehold

rents.

CHAPTER XVII.

Of Disturbance.

DISTURBANCE is a wrong done to some incorporeal hereditament, by hindering or disquieting the owners in their regular and lawful enjoyment of it. This injury is of five sorts:-1. Disturbance of franchises; 2. Disturbance of common; 3. Disturbance of ways; 4. Disturbance of tenure; 5. Disturbance of patron

age.

Disturbance of franchises happens, when a man has the franchise of holding a court leet, of keeping a fair or market, or 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. The remedy for these injuries is by a special action on the case.

The disturbance of common is, 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 put in cattle which are not commonable, as hogs and goats. But the lord of the soil may (by custom or prescription, but not without) put a stranger'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 also of the soil may justify making burrows therein, and putting in rabbits, so as they do not increase to so large a number as totally to destroy the common. But 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 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 pasture and herbage will sustain, or the party hath a right to do.

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 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 incloses it, or otherwise obstructs it, that the commoner is precluded from enjoying the benefit to which he is by law entitled. This may be done either by erecting fences, or by driving the cattle off the land, or by ploughing up the soil of the common. Or it may be done by erecting a warren therein, and stocking it with rabbits in such quantities, that they devour the whole herbage, and thereby destroy the common. this injury an action will lie against the owner.

For

Another 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 inclosures 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. If this be a way annexed to his estate, and the obstruction be made by the tenant of the land, this brings it to another species

of injury; for it is then a nuisance. But if the right of way thus obstructed by the tenant be only in gross (that is, annexed to a man's person, and unconnected with any lands or tenements), of if the obstruction of a way belonging to a house or land be made by a stranger, it is then in either case merely a disturbance : for the obstruction of a way in gross is no detriment to any lands or tenements, and therefore does not fall under the legal notion of a nuisance; and the obstruction of it by a stranger can never tend to put the right of way in dispute 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 is the breaking the connexion between landlord and tenant. So that if there be a tenant at will of any lands or tenements, and a stranger, either by menaces or threats, or by unlawful distresses, or by fraud and circumvention, or other means, contrive to drive them away, or inveigle him to leave his tenancy, this the law construes a wrong and injury to the landlord, and gives him a reparation in damages, by a special action on the

case.

Disturbance of patronage is an hindrance or obstruction of a patron to present his clerk to a benefice.

Disturbers of a right of advowson may be three persons; the pseudo-patron, his clerk, and the ordinary: the pretended patron, by presenting to a church to which he has no right; the clerk, by demanding or obtaining institution; and the ordinary, by refusing to admit the real patron's clerk, or admitting the clerk of the pretender. For these disturbances the law (besides the writ of right of advowson, which is a final and conclusive remedy) hath given the patron two inferior possessory actions for his relief; an assize of darrein presentment, and a writ of quare impedit; in which the patron is always the plaintiff, and not the clerk. The assize of darrein presentment is now totally disused, a quare impedit being a more general, and therefore a more usual action: for the assize of darrein presentment lies only where a man has an advowson by descent from his ancestors; but the writ of quare impedit is equally remediable whether a man claims title by descent or by purchase.

We proceed, therefore, to inquire into the nature of a writ of quare impedit, now the only action used in disturbance of patronage; and shall first premise the usual proceedings previous to the bringing of the writ."

Upon the vacancy of a living, the patron is bound to present within six calendar months, otherwise it will lapse to the bishop. But if the presentation be made within that time, the bishop is bound to admit and institute the clerk, if found sufficient; unless the church be full, or there be notice of any litigation. For if any opposition be intended, it is usual for each party to enter a caveat with the bishop, to prevent his institution of the antagonist's clerk.

An institution after a caveat entered is void by the ecclesiastical law: but this the temporal courts pay no regard to, and look upon a caveat as a mere nullity. But if two presentations be offered to the bishop upon the same avoidance, the church is then said to become litigious; and if nothing farther be done, the bishop may suspend the admission of either, and suffer a lapse to incur. Yet if the patron or clerk on either side request him to award a jus patronatus, he is bound to do it.

A jus patronatus is a commission from the bishop, directed usually to his chancellor and others of competent learning; who are to summon a jury, of six clergymen and six laymen, to inquire into and examine who is the rightful patron; and if, upon such inquiry made, and certificate thereof returned to the commissioners, he admits and institutes the clerk of that patron whom they return as the true one, the bishop secures himself at all events from being a disturber.

The clerk refused by the bishop may also have a remedy against him in the spiritual court, denominated duplex querela; which is a complaint in the nature of an appeal from the ordinary to his next immediate superior, as from a bishop to the archbishop, or from an archbishop to the delegates; and if the superior court adjudge the cause of refusal to be insufficient, it will grant institution to the appellant.

Thus far matters may go on in the mere ecclesiastical course! but in contested presentations they seldom go so far; for, upon the first delay or refusal of the bishop to admit his clerk, the patron usually brings his writ of quare impedit against the bishop, for the temporal injury done to his property in disturbing him in his presentation. And if the delay arise from the bishop alone, as upon pretence of incapacity, or the like, then he only is named in the writ: but if there be another presentation set up, then the pretended patron and his clerk are also joined in the action; or it may be brought against the patron and clerk, leaving out the bishop; or against the patron only. But it is most advisable to bring it against all three: for if the bishop be left out, and the suit be not determined till the six months are past, the bishop is entitled to present by lapse; for he is not party to the suit: but if he be named, no lapse can possibly accrue till the right is determined.

If the patron be left out, and the writ be brought only against the bishop and the clerk, the suit is of no effect, and the writ shall abate; for the right of the patron is the principal question in the cause.

If the clerk be left out, and have received institution before the action brought (as is sometimes the case), the patron by this suit may recover his right of patronage, but not the present turn; for he cannot have judgment to remove the clerk, unless he be made a defendant, and party to the suit, to hear what he can allege against it. For which reason it is the safer way to insert all three in the writ.

K

The writ of quare impedit commands the disturbers, the bishop, the pseudo-patron, and his clerk, to permit the plaintiff to present a proper person (without specifying the particular clerk) to such a vacant church, which pertains to his patronage, and which the defendants (as he alleges) do obstruct; and unless they so do, then that they appear in court to shew the reason why they hinder him.

Immediately on the suing out of the quare impedit, if the plaintiff suspect that the bishop will admit the defendant's or any other clerk pending the suit, he may have a prohibitory writ, called a ne admittas; which recites the contention begun in the king's courts, and forbids the bishop to admit any clerk whatsoever till such contention be determined. And if the bishop do, after the receipt of this writ, admit any person, even though the patron's right may have been found in a jure patronatus, then the plaintiff, after he has obtained judgment in the quare impedit, may remove the incumbent, if the clerk of a stranger, by writ of scire facias; and shall have a special action against the bishop, called a quare incumbravit, to recover the presentation, and also satisfaction in damages for the injury done him by encumbering the church with a clerk pending the suit, and after the ne admittas received.

But if the bishop have encumbered the church by instituting the clerk before the ne admittas issued, no quare incumbravit lies; for the bishop hath no legal notice, till the writ of ne admittas be served upon him. The patron is therefore left to his quare impedit merely.

Besides these possessory actions, there may also be had a writ of right of advowson, which resembles other writs of right; the only distinguishing advantage now attending it being, that it is more conclusive than a quare impedit, since to an action of quare impedit a recovery had in a writ of right may be pleaded in

bar.

There is no limitation with regard to the time within which any actions touching advowsons are to be brought, at least none later than the times of Richard I. and Henry III.; for by the 1 M. st. 2. c. 4. the Statute of Limitations (32 Hen. VIII. c. 2.) is declared not to extend to any writ of right of advowson, quare impedit, or assize of darrein presentment, or jus patronatus.

The presentation to such benefices as belong to Roman Catholic patrons is vested in and secured to the two universities. And by the 12 Ann. st. 2. c. 14. §4. a new method of proceeding is provided; viz. that besides the writs of quare impedit, which the universities as patrons are entitled to bring, they or their clerks may be at liberty to file a bill in equity against any person presenting to such livings and disturbing their right of patronage, or his cestuy qui trust, or any other person whom they have cause to suspect, in order to compel a discovery of any secret trusts, for the benefit of Papists, in evasion of those laws whereby this right of advowson is vested in those learned bodies; and also, by the