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the law will not suppose that, at the original grant of the common, the lord meant to exclude himself.?
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.(j) But tho Antient and most effectual method of proceeding is by writ of admeasurement of pasture. This lies either where a common appurtenant or in gross is certain as to number, or where a man has common appendant or appurtenant to his land, the quantity of which common has never yet been ascertained. In either of these cases, as well the lord,' as any of the commoners, is entitled to this writ of admeasurement; which is one of those writs that are called vicontiel,(k) being directed to the sheriff, (vicecomiti,) and not to be returned to any superior court till finally executed by him. It recites a complaint, that the defendant hath surcharged, superoneravit, the common; and therefore commands the sheriff to admeasure and apportion it; that the defendant may not have more than belongs to him, and that the plaintiff may have his rightful share. And upon this suit all the commoners shall be admeasured, as well those who have not as those who have surcharged the common; as well the plaintiff as the defendant.(1)
The execution of this writ must be by a jury of twelve men, who are
upon their *oaths to ascertain, under the superintendence of the sheriff, what and how many cattle each commoner is entitled to feed. And the rule for this admeasurement is generally understood to be, that the commoner shall not turn more cattle upon the common than are sufficient to manure and stock the land to which his right of common is annexed; or, as our antient law expressed it, such cattle only as are levant and couchant upon his tenement;(m) which, being a thing uncertain before admeasurement, has frequently, though erroneously, occasioned this unmeasured right of common to be called a common without stint or sans nombre;(n) a thing which, though possible in law,) does in fact very rarely exist.*
(m) Bro. Abr. tit. prescription, 28.
() Freem. 273.
(") Hardr. 117.
'The modern doctrine upon this subject is somewhat different; for it is now held that a prescription for a sole and several pasture, &c. in exclusion of the owner of the soil for the whole year is good, (2 Lev. 2. Pollexf. 13. 1 Mod. 74;) for it does not exclude the lord from all the profits of the soil, as he is entitled to the mines, trees, and quarries. And though a man cannot prescribe to have common eo nomine for the whole year in exclusion of the lord, (1 Lev. 268. 1 Ventr. 395,) still, the lord may by custom be restrained to a qualified right of common during a part of the year, (Yelv. 129;) and it is said the lord may be restrained, together with the commoners, from using the common at all during a part of the year. 1 Saund. 353, n. (2.) See also 2 H. Bl. 4. And it is said to have been clearly held that the commoners may prescribe to have common in exclusion of the lord for a part of the year. 2 Roll. Abr. 267, L. pl. 1.-Chitty.
This seems to be too generally expressed; for the lor l's right may be narrowed down to any thing short of absolute exclusion for the whole year. He may, together with the commoners, be entirely excluded for a part of the year, his right may be limited to the feeding of a limited number for a part of the year, or the commoner may have the pas ture entirely to his exclusion for a part of the year. Potter vs. North, 1 Saund. Rep. 353, n. 2.-COLERIDGE.
Finch, in the passage cited, expressly says that “the lord cannot have the writ of admeasurement against his tenants surcharging; for he may distrain the surplusage for damage-feasant.” And Fitz. N. B. 125, D. is an authority to the same effect. Lord Hale, citing several cases from the year-books, is of a different opinion. But all these seem agreed that the commoner cannot have it against the lord. – COLERIDGE.
* The lord may distrain not only the cattle of a stranger, but also so many of a commoner's cattle as surcharge the common. 2 Bla. R. 818. Willes, 638. A commoner can only distrain the cattle of a stranger, (1 Roll. Abr. 320, 405, pl. 5. Yelv. 104,) and not of the lord, (2 Buls. 117,) nor where a commoner overcharges the common, by putting in cattle that are not levant and couchant, can another commoner distrain the surplus, at least before admeasurement. 3 Wils. 287. 2 Lutw. 1238. 4 Burr. 2426. But where the right of common is limited to a certain number of cattle, without any relation to the quan
If, arter the admeasurement has thus ascertained the right, the same defendant surcharges the common again, the plaintiff may have a writ of second surcharge, de secunda superoneratione, which is given by the statute Westm. 2. 13 Edw. I. c. 8, and thereby the sheriff is directed to inquire by a jury whether the defendant has in fact again surcharged the common contrary to the tenure of the last admeasurement; and, if he has, he shall then forfeit to the king the supernumerary cattle put in, and also shall pay damages to the plaintiff
. (p) This process seems highly equitable : for the first offence is held to be committed through mere inadvertence, and therefore there are no damages or forfeiture on the first writ, which was only to ascertain the right which was disputed; but the second offence is a wilful contempt and injustice, and therefore punished very properly with not only damages but also forfeiture. And herein the right, being once settled, is never again
disputed; but only the fact is tried, whether there be any second surcharge or no: which gives this neglected proceedingo a great advantage over the modern method by action on the case, wherein the quantum of common belonging to the defendant must be proved upon every fresh trial for every repeated offence.
*There is yet another disturbance of common, when the owner of the land, or other person, so encloses or otherwise obstructs it that the [*240 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. For, in such case, though the commoner may not destroy the rabbits, yet thu law looks upon this as an injurious disturbance of his right, and has given him his remedy by action against the owner.(r) 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.(8) 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 distui bance 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.(t) 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.(u)?
There are cases, indeed, in which the lord may enclose and abridge tho common; for which, as they are no injury to any one, so no one is entitled to any remedy. For it is provided by the statute of Merton, 20 Hen. III. c. 4,
(P) F. N. B. 126. 2 Inst. 370.
( F. N. B. 179.
tity of land which the commoner possesses, and he puts in a greater number, perhaps another commoner may distrain the supernumerary cattle. 4 Burr. 2431. It seems clear that a claim of common pleaded by an inhabitant, as an inhabitant merely, is bad : it must be pleaded either in the name of a corporation for the benefit of the inhabitants, or in a que estate. 6 Co. 69, b. 4 T. R. 717. 1 Saund. 346, n. (8.) But if the defendant be lord of the manor, or one who puts his cattle on the common with the lord's license, the commoner cannot maintain an action unless he has sustained a specific injury; for the lord is entitled to what remains of the grass, and therefore may consumo it himself, or license another to depasture it. 4 T. R. 73.2 Mod. 6. 6 Willes, 619. Сніттү.
* Now abolished, 3 & 4 W. IV. c. 27, s. 36.-STEWART.
. It is the policy of the law not to allow commoners to abate, except only in a few cases; for an action will best ascertain the just measure of the damage sustained. But if the lord erect a wall, gate, hedge, or fence round the common, to prevent the com. moner's cattle from going into the common, the commoner may abate the erection, because it is inconsistent with the grant. 1 Burr. 259. 6 T. R. 485.-Cutty.
This 13 now the only remerly, these real actions having been abolished. 3 & 4 W. IV c. 27, 6. 36.- STEWART.
that the lord may approve, that is, enclose and convert to the uses of husbandry, (which is a melioration or approvement,) any waste grounds, woods, or pastures, in which his tenants have common appendant to their estates, provided he
leaves *sufficient common to his tenants, according to the proportion
of their land. And this is extremely reasonable; for it would be very hard if the lord, whose ancestors granted out these estates to which the commons are appendant, should be precluded from making what advantage ho can of the rest of his manor, provided such advantage and improvement be noway derogatory from the former grants. The statute Westm. 2, 13 Edw. I. c. 46 extends this liberty of approving, in like manner, against all others that have common appurtenant, or in gross, as well as against the tenants of the lord who have their common appendant; and further enacts that no assize of novel disseisin for common shall lie against a lord for erecting on the common any windmill, sheep-house, or other necessary buildings therein specified: which, Sir Edward Coke says,(w) are only put as examples; and that any other necessary improvements may be made by the lord, though in reality they abridge the common and make it less sufficient for the commoners. And lastly, by statute 29 Geo. II. c. 36, and 31 Geo. II. c. 41, it is particularly enacted that any lords
c. of wastes and commons, with the consent of the major part in number and value of the commoners, may enclose any part thereof for the growth of timber and underwood.8
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. If this be a way annexed to his estate, and the obstruc. tion is made by the tenant of the land, this brings it to another species of injury; for it is then a nuisance, for which an assize will lie, as mentioned in a former chapter.(x) 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 *242]
*tenements,) or if the obstruction of a way belonging to a house or land
is 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, which must be laid ad nocumentum liberi tenementi;(y) and the obstruction of it by a stranger can never tend to put the right of way in dispute; the remedy, therefore, for () 2 Inst. 476.
(*) F. N. B. 183.
(*) C. 13, p. 218.
• As the lord may approve, leaving a sufficiency of common, the commoner abates an erection at the peril of an action. A person seised in fee of the waste may approve, although he be not lord. 3 T. R. 445. But there can be no approvement against the tenants of a manor, who have a right to dig gravel in the wastes and take estovers, (2 T R. 391,) nor against common of turbary, (Taunt. 435;) and although the lord may approve against common of pastures, by 20 Hen. III. c. 4, 5 T. R. 411, yet there may be other rights of common against which he cannot approve. 6 T. R. 741. A custom for tenants to approve by the lord's consent and by presentment of the homage does not restrain the lord's right to approve. 2 T. R. 392, n. The lord may, with consent of the homage, grant part of the soil for building, if the exercise of the right be imme morial, (5 T. R. 417, n. ;) but a custom for the lord to grant leases of the waste without restriction is bad in point of law. 3 B. & A. 153.
The cultivation of common lands, and the enclosure and management of them, are now carried on under private acts of parliament, subject to and adopting the regulations laid down in the 13 Geo. III. c. 81 and 41 Geo. III. c. 109, which are incorporated into all special enclosure acts.-Cutty.
By the general enclosure acts, (41 Geo. III. c. 109, amended by 1 & 2 Geo. IV. c. 23, 6 & 7 W. IV. c. 115, and 3 & 4 Vict. c. 31,) it is particularly enacted that any lords of wastes and commons, with the consent of two-third parts in number and value of the com. moners, may enclose any part thereof for the growth of timber and underwood.WEEWART
these disturbances is not by assize or any real action, but by the universal remedy of action on the case to recover damages.(2)
IV. The fourth species of disturbance is that of disturbance of tenure, or breaking 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. To have an estate well tenanted is an advantage that every landlord must be very sensible of; and therefore the driving away of a tenant from off his estate is an injury of no small consequence. So that if there be a tenant at will of any lands or tenements, and a stranger, either by menaces and threats, or by unlawful distresses, or by fraud and circumvention, or other means, contrives to drive him away, or inveigle bim to leave his tenancy, this the law very justly construes to be a wrong and injury to the lord,(a) and gives him a reparation in damages against the offender by a special action on the case.
V. The fifth and last species of disturbance, but by far the most considerable, is that of disturbance of patronage; which is a hinderance or obstruction of a patron to present his clerk to a benefice.
This injury was distinguished at common law from another species of injury, called usurpation; which is an absolute ouster or dispossession of the patron, and happens when a stranger, that hath no right, presenteth a clerk, and he is thereupon *admitted and instituted.(6) In which case of usurpation, the patron lost by the common law not only his turn of presenting pro
[*243 hac vice, but also the absolute and perpetual inheritance of the advowson, so that he could not present again upon the next avoidance, unless in the mean time he recovered his right by a real action, viz., a writ of right of advowson.(C) The reason given for his losing the present turn, and not ejecting the usurper'e clerk, was that, the final intent of the law in creating this species of property being to have a fit person to celebrate divine service, it preferred the peace of the church (provided a clerk were once admitted and instituted) to the right of any patron whatever. And the patron also lost the inheritance of his advow. bon, unless he recovered it in a writ of right, because by such usurpation he was put out of possession of his advowson, as much as when by actual entry and ouster he is disseised of lands or houses; since the only possession of which an adrowson is capable is by actual presentation and a'lmission of one's clerk. As, therefore, when the clerk was once instituted (except in the case of the king, where he must also be inducted)(d) the church became absolutely full; so tho usurper by such plenarty, arising from his own presentation, became in fact Beised of the advowson : which seisin it was impossible for the true patron to remove by any possessory action, or other means, during the plenarty or fulness of the church; and when it became void afresh, he could not then present, sinco another had the right of possession. The only remedy, therefore, which the patron had left, was to try the mere right in a writ of right of advowson; which is a peculiar writ of right, framed for this special purpose, but in every other respect corresponding with other writs of right:(e) and if a man recovered therein, he regained the possession of his advowson, and was untitled to present at the next avoidance.() But in order to such recovery he must allego a pre
(* Ilale on F. N. B. 185. Lutw. 111, 119.
. And this preference of the peace of the church to the litigateu rights of patrons was held to prevail in all cases, without any regard to infancy, coverture, or any such like disability of the patron; for it was a maxim of the common law " that he who came in by admission and institution came in by a judicial act; and the law presumes that the bishop who has the care of the souls of all within his diocese, for which he shall answer at his fearful and final account, (in respect of which he ought to keep and defend them against all heretics and schismatics and other ministers of the devil,) will not do or assent to any wrong to be done to their patronages, which is of their earthly possession, but, if the church be litigious, that he will inform himself of the truth by a de jure patronatus, and so do right.” 6 Coke, 19.-Cutti.
sentation in himself or some of his ancestors, which proves him or them to have been once in possession : for, as a grant of the advowson, during the ful*244]
ness of church, conveys *no manner of possession for the present, there
fore purchaser, until he hath presented, hath no actual seisin whereon to ground a writ of right.(9) Thus stood the common law.
But, bishops in antient times, either by carelessness or collusion, frequently instituting clerks upon the presentation of usurpers, and thereby defrauding the real patrons of their right of possession, it was in substance enacted by statute Westm. 2, 13 Edw. I, c. 5, § 2, that if a possessory action be brought within sis months after the avoidance, the patron shall (notwithstanding, such usurpation and institution) recover that very presentation ; which gives back to him the seisin of the advowson. Yet still, if the true patron omitted to bring his action within six months, the seisin was gained by the usurper, and the patron, to recover it, was driven to the long and hazardous process of a writ of right. To remedy which, it was further enacted, by statute 7 Anne, c. 18, that no usurpation shall displace the estate or interest of the patron, or turn it to a mere right; but that the true patron may present upon the next avoidance, as if no such usurpation had happened. So that the title of usurpation is now much narrowed, the law stands upon this reasonable foundation : that if a stranger usurps my presentation, and I do not pursue my right within six months, I shall lose that turn without remedy, for the peace of the church and as a punishment for my own negligence; but that turn is the only one I shall lose thereby. Usurpation now gains no right to the usurper with regard to any future avoidance, but only to the present vacancy: it cannot indeed be remedied after six months are past; but during those six months it is only a species of disturbance.
Disturbers of a right of advowson may therefore be these three persons: the pseudo-patron, his clerk, and the ordinary; the pretended patron, by presenting to a church to which he has no right, and thereby making it litigious or dis*245]
putable; the clerk, by demanding or obtaining institution, *which tends
to and promotes the same inconvenience; and the ordinary, by refusing to admit the real patron's clerk, or admitting the clerk of the pretender. These disturbances are vexatious and injurious to him who hath the right: and there. fore, if he be not wanting to himself, the law (besides the writ of right of adVouson, which is a final and conclusive remedy) hath given him 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. For the law supposes the injury to be offered to him only, by obstructing or refusing the admission of his nominee; and not to the clerk, who hath no right in him till institution, and of course can suffer no injury:
1. An assize of darrein presentment, or last presentation, lies when a man, or nis ancestors, under whom he claims, have presented a clerk to a benefice, who is instituted, and afterwards upon the next avoidance a stranger presents & clerk, and thereby disturbs him that is the real patron. In which case the patron shall have this writ(h) directed to the sheriff to summon an assize or jury, to inquire who was the last patron that presented to the church now vacant, of which the plaintiff complains that he is deforced by the defendant: and, according as the assize determines that question, a writ shall issue to the bishop; to institute the clerk of that patron, in whose favour the determination is made, and also to give damages, in pursuance of statute Westm. 2, 13 Edw. I. c. 5. This question, it is to be observed, was, before the statute 7 Anne before mentioned, entirely conclusive as between the patron or his heirs and a stranger: for, till then, the full possession of the advowson was in him who presented last and his heirs : unless, since that presentation, the clerk had been evicted within six months, or the rightful patron had recovered the advowson in a writ of right; which is a title superior to all others. But that statute having given a right to any person to bring a quare impedit, and to recover (if his title be good) *246)
notwithstanding the last presentation, by whomsoever *made; assizea of darrein presentment, now not being; in any wise conclusive, have been
(*) F. N. B. 31.
(%) 2 Inst. 3''.