PRIVATE WRONGS.
BOOK III.
CH. 15.

CHAPTER THE FIFTEENTH.
OF SUBTRACTION.

SUBTRACTION, which is the fifth fpecies of injuries affecting a man's real property, happens, when any perfon who owes any fuit, duty, cuftom, or fervice to another, withdraws or neglects to perform it. It differs from a diffeifin, in that this is committed without any denial of the right, confifting merely in non-performance ; that ftrikes at very title of the party injured, and amounts to an oufter or actual difpoffeffion. Subtraction however, being clearly an injury, is remediable by due courfe of law : but the remedy differs according to the nature, or by cuftom only.

I. FEALTY, fuit of court, and rent, are duties and fervies ufually iffuing and arifing ratione tenurae, being the conditions upon which the antient lords granted out their lands to their feudatories : whereby it was stipulated, that they and their heirs fhould take the oathe of fealty or fidelity to their lord, which was the feudal bond or commune vinculum between lord and tenant ; that they fhould do fuit, or duly attend and follow the lord's courts, and there from time to time give their affiftance, by ferving on juries,either to decide the property of their neighbours in the courtbaron, or correct their mifdemefnors in the court-leet ; and, laftly, that they fhould yield to the lord certain annual ftated

return,
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CH. 15.

returns, in military attendance, in provifions, in arms, in matters of ornament or pleafure, in fuftic employments or praedial labour, or (which is inftar omnium) in miney, which wil provide all te reft ; all which are comprised under the one general name of reditus, return, or rent. And the fubtraction or nonobfervance of any thefe conditions, by neglecting, to fwear fealty, to do fuit of court, or to render the rent or fervice referved, is an injury to freehold of the lord, by diminifhing and depreciating the value of his feignory.

THE general remedy for all thefe is by diftrefs ; and it is the only remedy at the common law for the two firft of them. The nature of diftreffes, their incidents and cnfequences, we have before more than once explained ^a : it may here fuffice to remember, that they are a taking of beafts, or other perfonal property, by way of pledge to enforce the performance of fomething due from that diftreffes be reafonable and moderate ; but, in the café fo diftrefs fealty or fuit of court, no diftrefs can be unreafonable, immoderate, or too large ^b : for this is the only remedy to which the party aggrieved is intitled, and therefore it ought to be fuch as is fufficiently compulfory ; and, be it of what value it will, there is no harm, done, efpecially as it cannot be fold or made away with, but muft be reftored immediately on fatisfaction to it's quantity, and may be repeated from time to time, until the ftubbornnefs of the party is conquered, is called a diftrefs infinite ; which is alfo ufed for fome other purpofes, as in fummoning jurors, and the like.

OTHER remedies for fubtraction of rents or fervices are, 1. By action of debt, for the breach of this exprefs cantract, of which enough has been formerly faid. This is the moft ufual remedy, when recoufe is had to any action at all for the recovery of pecuniary rents, to which fpecies of render almoft all free

{FS}
^a See pag.6.147.
^b Finch.L.285.
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fervices
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fervices are now reduced, fince the abolition of the military tenures. But for a freehold rent, feferved on a leafe for life, &c, no action of debt lay by the common law, during the continuance of the freehold out of which it iffued ^c : for the law would not fuffer a real injury to be remedied by an action that was merely perfonal. However by the ftatutes 8 Ann.c.14. and 5 Geo. III. c.17. actions of debt may now be brought at any time to recover fuch freehold rents. 2. An affife of mort d' anceftor or novel difeifin will lie of rents as well of land ^d ; if the lord, for the fake of trying the poffeffory right, will elect to fuppofe himfelf oufted or diffeifed thereof. This is now feldom heard of ; and all other real actions, being in the nature of writs of right, and therefore more dilatory in their progrefs, are intirely difufed, though not formally abolifhed by law. Of this fpecies however is, 3. The writ de confuetudinibus et fervitiis, which lies for the lord againft his tenant, who withholds from him the rents and fervices due by cuftom, or tenure, for his land ^e. This compels a fpecific payment or performance of the rent or fervice ; but there are alfo others, whereby the lord fhall recover the land itfelf in lieu of the duty withheld. As, 4. The writ of cefavit : which lies, by the ftatutes of Glocefter, 6 Edw. I.c.4.and of Weftm. 2. 13 Edw. I. c.21&41. when a man who holds lands of a lord by rent or other fervices, neglects or ceafes to perform his fervices for two years together ; or where a religious houfe hath lands given it, on condition of performing fome certain fpiritual fervice, as reading prayers or giving alms, and neglects it ; in eitherof which cafes, if the ceffer or neglect have continued for two years, the lord or donor and his heirs fhall have a writ of ceffavit to recover the land itfelf, eo quod tenens in faciendis ferivttiis per biennium jam ceffavit ^f. And in like manner, by the civil law, if tenant, (who held lands upon payment of rent or fervices, or as they call it “jure emphyteutico,”) neglected to pay or perform them per totum triennium, he might be ejected from fuch emphyteutic lands ^g. But by the ftatute of Glocefter, the ceffa-

{FS}
^c 1 Roll. Abr.595.
^d F.N.B.195.
^e Ibid.151.
^f Ibid 208.
^g Cod. 4.66.2.
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vit
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vit does not lie for lands let upon fee-fimple rents, unlefs they have lain frefh and uncultivated for two years, and there be not fufficient fiftrefs upon the premifes ; or unlefs the tenant hath fo enclofed the land, that the lord cannot come upon it to diftrein ^h. For the law prefers the fimple and ordinary remedies, by diftrefs, or by the actions juft now mentioned, to this extraordinary one of forfeiture for a ceffavit ; and therefore the fame ftatute of Glocefter has provided farther, that upon tender of arrears and damages before judgment, and giving fecurity for the future performance of the fervices, the porcefs fhall be at an end, and the tenant fhall retain his land. And to this the ftatute of Weftm.2. conforms, fo far as may ftand with convenience and reafon of law ⁱ. It is eafy to obferve, that the ftatute 4 Geo.II. c.28. which was mentioned in a former chapter ^k, and which permits landlords who have right of re-entry for non-payment of rent, to ferve an ejectment on their tenants, when half a year's rent is due, and there is no diftrefs on the premifes ; it is eafy, I fay, to obferve, that this provifion is in fome meafure copied from the antient writ of ceffavit : efpecially as it may be fatisfied and put an end to in a fimilar manner, by tender of the rent and cofts within fix months after. 5. There is alfo another very effectual remedy, which takes place when the tenant upon a writ of affife for rent, or on a replevin, difowns or difclaims his tenure, whereby the lord lofes his verdict : in which café the lord may have a writ of right, fur difclaimer, grounded on this denial tenure ; and fhall, upon proof the tenure, recover back the land itfelf foholden, as a punifhment to the tenant for fuch his falfe difclaimer ^l. This piece of retaliating juftice, whereby the tenant who endeavours to defraud his is himfelf deprived of the eftate, as it evidently proceeds upon feudal principles, fo it is expreffly to be met with in the feudal conftitutions ^m : “vafallus,qui abnegavit feudum ejufve conditionem, exfpoliabitur.”

{FS}
^h F.N.B.209. 2 Inft. 298.
ⁱ 2 Inft. 401.460.
^k See pag.206.
^l Finch L.270,271.
^m Feud. l.2.t.26.
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F f
AND,
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AND, as on the one hand the antient law provided thefe feveral remedies to obviate the knavery and punifh the ingratitude of the tenant, fo on the other hand it was equally careful to redrefs the oppreffion of the lord ; by furnifhing, 1. The writ of ne injufte vexes ⁿ ; which is an antient writ founded on that chapter ^o of magna carta, which prohibits diftreffes for greater fervices than are really due to the lord ; being itfelf of the prohibitory kind, and yet in the nature of a writ of right ^p. It lies, where the tenant in fee-fimple and his anceftors have held of the lord by certain fervices ; and the lord hath obtained feifin of more or greater fervices, by the inadvertent payment or performance of them by the tenant himfelf . Here the tenant cannot in an avowry avoid the lord's poffeffory right, becaufe of the feifin given by his own hands ; but is driven to this writ, to deveft the lord's poffeffion, and eftablifh the mere right of property, by afcertaining the fervices, and reducing them to their proper ftandard. But this writ does not lie for tenant in tail ; for he may avoid fuch feifin of the lord, obtained from the payment of this anceftors, by plea to an avowry in replevin ^q. 2. The writ of mefne, de medio ; which is alfo in the nature of a writ of right ^r, and lies, when upon a fubinfeudation the mefne or middle lord ^s fuffer his under-tenant, or tenant paravail, to be diftreined upon by lord paramount, for the rent due to him from the mefne lord ^t. And in fuch café the tenant fhall have judgment to be acquitted (or andemnified) by the mefne lord ; and if he makes default therein, or does not appear originally to the tenant's writ, he fhall be forejudged of his mefnalty, and the tenant fhall hold immediately of the lord paramount himfelf ^u.

II. THUS far of the remedies for fubtraction of rents or other fervices due by tenure. There are alfo other fervices, due by an-

{FS}
ⁿ F.N.B.10.
^o C.10.
^p Booth.126.
^q F.N.B.11. 2 Inft.21.
^r Booth. 136.
^s See book II. ch. 5. pag.59,60.
^t F.N.B.135.
^u 2 Inft.374.
{FE}
tient
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tient cuftom and prefcription only. Such is that of doing fuit to another's mill : where the perfons, refident in a particular place, by ufage time out of mind have been accuftomed to grind their corn at a certain mill ; and afterwards any of them go to another mill, and withdraw their fuit, (their fecta, a fequendo) from the antient mill. This is not only a damage, but an injury, to the owner ; bucaufe this not only a damage, but an injury, to the owner ; becaufe this prefcription might have a very reafonable foundation ; viz. upon the erection of fuch mill by the anceftors of the owner for the convenience of the inhabitants, on condition, that, when erected, they fhould all grind their corn there only. And for this injury the owner fhall have a writ de fecta ad molendinum ^w, commanding the defendant to do his fuit at that mill, quam ad illud facere debet, et folet, or fhew good caufe to the contrary : in which action the validity of the prefcription may be tried, and if it be found for the owner, he fhall recover dmages againft the defendant ^x. In like manner, and for like reafons, the regifter ^y will inform us, that a man may have a writ of fecta ad furnum, fecta ad torrale, et ominia alia hujufmodi ; for fuit due to his furnum, his public oven or bakehoufe ; or to his torrale, his kiln, or malthoufe ; when a perfon's anceftors have erected a conveniendce of that fort for the venefit of the neighbourhood, upon an agrrement ( proved by immemorial cuftom) that all the inhabitants fhould ufe refort to it, when ecrected. But befides thefe fpecial remedies for fubtractions, to compel the fpecific performance of the fervice due by cuftom ; an action on the café will alfo lie all of them, to repair the party injured in damages. And thus much for the injury of fub-

{FS}
^w F.N.B.123.
^x Co.Entr.461.
^y fol.153.
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F f 2
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