the trial, may give in evidence any thing that proves there was no wafte committed, as that the deftruction happened by lightning, tempeft, the king's enemies, or other inevitable accident. But it is no defence to fay, that a stranger did the wafte, for against him the plaintiff hath no remedy: though the defendant is entitled to fue fuch stranger in an action of trespass vi et armis, and shall recover the damages he has fuffered in confequence of such unlawful act a. WHEN the wafte and damages are thus afcertained, either by confeffion, verdict, or inquiry of the sheriff, judgment is given, in pursuance of the statute of Glocefter, c. 5. that the plaintiff fhall recover the place wafted; for which he has immediately a writ of feifin, provided the particular eftate be ftill fubfifting, (for, if it be expired, there can be no forfeiture of the land) and also that the plaintiff fhall recover treble the damages affeffed by the jury; which he must obtain in the fame manner as all other damages, in actions perfonal and mixed, are obtained, whether the particular estate be expired, or still in being. * Co. Litt. 53. a Law of nifi prius. 112. OF CHAPTER THE FIFTEENTH. SUBTRACTION. UBTRACTION, which is the fifth fpecies of inju Sries affecting a man's real property, happens, when any perfon who owes any fuit, duty, cuftom, or service 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 strikes at the 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 of the fervices; whether they be due by virtue of any tenure, or by cuftom only. I. FEALTY, fuit of court, and rent, are duties and fervices ufually iffuing and arifing ratione tenurae, being the conditions upon which the antient lords granted out their lands to their feudatories: whereby it was ftipulated, that they and their heirs fhould 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 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 court-baron, or correct their mifdemefnors in the court-leet; and, lastly, that they fhould yield to the lord certain annual stated returns, in military attendance, in provifions, in arms, in matters of ornament or pleasure, in ruftic employments or praedial Ch. 15. THE general remedy for all these is by diftrefs; and it is the only remedy at the common law for the two first of them. The nature of diftreffes, their incidents and confequences, we have before more than once explained: it may here fuf fice 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 the party diftreined upon. And for the most part it is provided that diftreffes be reasonable and moderate; but, in the case of diftress for fealty or fuit of court, no diftrefs can be unreafonable, immoderate, or too large for this is the only remedy to which the party aggrieved is entitled, and therefore it ought to be fuch as is fufficiently compulfory; and, be it of what value it will, there is no harm done, especially as it cannot be fold or made away with, but must be reftored immediately on fatisfaction made. A diftrefs of this nature, that has no bounds with regard 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 also used for fome other purposes, 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 contract, of which enough has been formerly faid. This is the most ufual remedy, when recourse is had to any action at all for the recovery of pecuniary rents, to which fpecies of render almoft all free fervices are now reduced, fince the abolition But for a freehold rent, reserved on of the military tenures. a See page 6. 148. Finch. L. 285. a leafe a leafe 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 perfonal. However, by the statutes 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'ancestor or novel diffeifin will lie of rents as well as of lands; if the lord, for the fake of trying the poffeffory right, will make it his election to suppose himself oufted or diffeifed thereof. This is now feldom heard of; and all other real actions to recover rent, being in the nature of writs of right, and therefore more dilatory in their progrefs, are entirely difufed, though not formally abolished by law. Of this fpecies however is, 3. The writ de confuetudinibus et fervitiis, which lies for the lord against his tenant, who withholds from him the rents and fervices due by cuftom, or tenure, for his land. This compels a specific payment or performance of the rent or fervice; and there are also others, whereby the lord fhall recover the land itself in lieu of the duty withheld. A6, 4. The writ of ceffavit: 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; în either of which cafes, if the ceffer or neglect have continued for two years, the lord or donor and his heirs shall have a writ of ceffavit to recover the land itself, eo quod tenens in faciendis fervitiis per biennium jam ceffavit. In like manner, by the civil law, if a tenant who held lands upon payment of rent or services, or "jure emphyteutico," neglected to pay or perform them per totum triennium, he might be ejected from fuch emphyteutic lands. But by the ftatute of Glocefter, the ceffavit does not lie for lands let upon fee-farm rents, unlefs they have lain fresh and uncultivated for two years, and c1 Roll. Abr. 595. d F. N. B. 195. e Ibid. 151. f Ibid. 208. there there be not fufficient distress upon the premises; or unless the tenant hath so enclosed the land, that the lord cannot come upon it to diftrein ". For the law prefers the fimple and ordinary remedies, by diftrefs or by the actions just now mentioned, to this extraordinary one of forfeiture for a ceffavit; and therefore the same statute 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 process shall be at an end, and the tenant shall retain his land to which the ftatute of Westm. 2. conforms, fo far as may stand with convenience and reason of law. It is easy to obferve, that the statute * 4 Geo. II. c. 28. (which permits landlords who have a right of re-entry for non-payment of rent, to serve an ejectment on their tenants, when half a year's rent is due, and there is no fufficient distress on the premises) is in some measure 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. And the fame remedy is, in substance, adopted by ftatute 11 Geo. II. c. 19. §. 16. which enacts, that where any tenant at rack-rent shall be one year's rent in arrear, and shall defert the demifed premises, leaving the fame uncultivated or unoccupied, fo that no fufficient distress can be had two juftices of the peace (after notice affixed on the premises for fourteen days without effect) may give the landlord poffeffion thereof, and thenceforth the lease shall be void. 5. There is also another very effectual remedy, which takes place when the tenant upon a writ of aflife for rent, or on a replevin, difowns or disclaims his tenure, whereby the lord lofes his verdict: in which cafe the lord may have a writ of right, fur disclaimer, grounded on this denial of tenure; and hall, upon proof of the tenure, recover back the land itself fo holden, as a punishment to the tenant for fuch his falfe difclaimer. This piece of retaliating juftice, whereby the tenant who endeavours to defraud his lord is himself deprived of the eftate, as it evidently proceeds upon feodal principles, h F. N. B. 209. z Inft. 298. i 2 Inft. 401. 460. k See page 206. 1 Finch. L. 270, 271. fo |