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be found upon the land, the lord or any of the commoners may distrain them damage-feasant (n). And the commoner may bring an action on the case to recover damages, without proving any specific damage to himself, against a person wrongfully depasturing cattle on the common, because the law considers that the right of the commoner is injured by such an act, and therefore allows him to bring an action for it to prevent a wrongdoer from gaining a right by repeated acts of encroachment. For wherever any act injures another's right, and would be evidence in future in favour of the wrongdoer, an action may be maintained for an invasion of that right, without proof of specific injury; that is to say, wherever one man does an act, which, if repeated, would operate in derogation of the right of another, he is liable to an action, * without proof of particular damage, at suit of the person [* 297]

, , whose right may be so affected (0).

Another disturbance of common is by surcharging it; or putting more cattle thereon than the pasture and herbage will sustain, or the party has a right to do. In this case he who surcharges does an injury to the rest of the owners, by depriving them of their respective portions, or at least diminishing them. This injury by surcharging can, properly speaking, only happen, where the common is appendant or appurtenant (P), and of course limitable by law; or where, when in gross, it is expressly limited and certain.

The remedy, for surcharging the common, is either by distraining so many of the beasts as are above the number allowed, or else by an action of trespass, which may be had by the lord; or by an action on the case, in which any commoner may be plaintiff (@). * There is yet another disturbance of common to be here noticed,

[ * 298] when the owner of the land, or other person, so encloses (r) or obstructs it, that the commoner is precluded from enjoying the benefit therefrom to which he is by law entitled. This may be done, by erecting houses or fences on the common, or by driving the cattle off the land, or by ploughing up the soil of the common (s). 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 the law looks upon this as an injurious disturbance of the commoner's right, and has given him his remedy by action against the owner (t). (n) Marys': Case, 9 Rep. 112 b.

than belonged to him, and that the plain(0) Harrop v. Hirst, L. R. 4 Ex. 43, and tiff might have his rightful share. And cases there cited ; 1 Wms. Saund. 346. upon this suit all the commoners were to be (p) Ante, vol. ii., chap. 3.

admeasured, as well those who had not, as (9) Dixon v. James, Freem. 273.

those who had surcharged the common; as The ancient method of proceeding, under well the plaintiff as the defendant. The exthe circumstances, supra, was by writ of ecution of the writ was by a jury of twelve admeasurement of pasture. This lay either men, who were upon their oaths to ascertain, where a common appurtenant or in gross was under the superintendence of the sheriff, certain as to number, or where a man had what and how many cattle each commoner common appendant or appurtenant to his was entitled to feed. And the rule for this land, the quantity of which common had admeasurement was generally understood to never been ascertained. In either of these be, that the commoner should not turn more cases, any of the commoners was entitled to cattle upon the common than were sufficient this writ of admeasurement; which was to manure and stock the land to which his directed to the sheriff, and not returnable to right of common was annexed; or, as our any superior court, till finally executed by ancient law expressed it, such cattle only as him. It recited a complaintthat the were levant and couchant upon bis tenement. defendant had surcharged, superoneravit, (r) As to the enclosure of commons by act the common: and therefore commanded of parliament, ante, vol. ji. the sheriff to admeasure and apportion it; (8) Leverett v. Touonsend, Cro. Eliz. 198. that the defendant might not have more (1) Hadesden v. Gryssel, Cro. Jac. 195.

The policy of our law, however, is not to allow a commoner to abate a nuisance upon the common, except only in few cases, for an action will best ascertain the just measure of the damage which may have been sustained. But if the lord erect a wall, gate, hedge, or fence round the common, to prevent the commoner's cattle from going into the common, the commoner may abate the erection (u), because it is inconsistent with the grant actual or presumed under which he claims. The interest which a commoner has in the common, is usually to eat the grass by the mouths of his cattle. But he cannot cut the grass, wood, bushes, fern, or other things growing on the common, nor can he make fish-ponds there (x). So if the lord plant trees on the common, whereby the commoner cannot have his common so beneficially as he ought, the commoner cannot cut them down, for they are part of the soil itself; but he must [ * 299 ]

bring an action on the case against the lord (y). * And if the lord's

rabbits increase so much that there is not a sufficiency of common left, the commoner cannot fill up the coney burrows, for that would be a meddling with the soil, but he must bring his action (2). Much less can a commoner kill the rabbits to prevent their increase to the prejudice of the common (a).

3. Another species of disturbance, that of ways, principally happens when a person, who has a right of way over another's ground, by grant or prescription,

is obstructed in exercising it by enclosures, or other obstacles, or

by ploughing across it: by which means he cannot enjoy his right of way, or at least cannot enjoy it in so commodious a manner as he might have done. The remedy for such disturbance is by an action on the case to recover damages (6). (576)

4. Again, if I am entitled to hold a fair or market, and another person sets up a fair or market so near mine that he does me a prejudice, it is a nuisance 4. Disturbance of

to the freehold which I have in my market or fair (c). But in à fair or market. order to make this out to be a nuisance, it is necessary, 1. That my market or fair be the elder, otherwise the nuisance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For Sir Matthew Hale (d) construes the dieta, or reasonable day's journey mentioned by Bracton (e), to be twenty miles; and so it was understood to be, not only in our own law (f), but also in the civil (g), from which we probably borrowed it. So that if the new market be not within seven miles of the old one, it is no nuisance; for it is held reasonable that every man should have a market within one-third of a day's journey from his own home;

that the day being * divided into three parts, he may spend one part [ * 300]

in going, another in returning, and the third in transacting his necessary business there. If such market or fair be on the same day with

3. Disturbance

of way.


(u) Dacies v. Williams, 16 Q. B. 546, and (6) Hale on F. N. B. 183 ; Lut. 111, 119. cases cited ante, p. 6.

See, further, as to the right of way, ante, (.r) Carrill v. Pack, 2 Bulstr. 115; Horoard vol. ii. p. 42. V. Spencer, 1 Sid. 251.

(C) F. N. B. 184. (y) Sadgrove v. Kirby, 6 T. R. 483 ; 1 B. & (d) Hale on F. N. B. 184. P. 13.

(e) L. 4, c. 46. (2) Cooper v. Marshall, 1 Burr. 259 ; 2 Wilg. (f) 2 Inst. 567. 51.

(9) Dig. 2, 11. (a) 1 Roll. Abr. 405, pl. 1, 2.

(576) See Seneca Road Co. v. Auburn & Rochester R. R. Co., 5 Hill, 170; Osborne v. Butcher, 2 Dutch. (N. J.) 308.

of tenure.

mine, it is prima facie a nuisance to mine, and there needs no proof of it, but the law will intend it to be so; but if it be on any other day, it may be a nuisance; though whether it is so or not, cannot be intended or presumed, but I must make proof of it to the jury.

5. Likewise, if a ferry is erected on a river, so near another ancient ferry as to draw away its custom, it is a nuisance to the owner of the old one. For 5, Disturbance of

where there is a ferry by prescription, the owner is bound to an ancient ferry. keep it always in repair and readiness, for the ease of all the subjects of the crown; otherwise he may be grievously amerced (1): it would be therefore extremely hard, if a new ferry were suffered to share his profits, which does not also share his burthen. But where the reason ceases, the law also ceases with it: therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water. Neither is it a nuisance to set up any trade, or a school, in a neighbourhood or rivalship with another: for by such emulation the public are like to be gainers; and, if the new mill or school occasion a damage to the old one, it is damnum absque injurid (i).

6. Another species of disturbance mentioned by legal writers of repute, although perhaps unknown at the present day, is that of disturbance of 6. Disturbance

tenure, or breaking that connection which subsists between the

lord and his tenant, and which the law will not suffer to be wantonly dissolved by the act of a third person. To have an estate well tenanted is an advantage of which every landlord must be sensible: 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 tene

[ * 301 ] ments, 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 him to leave his tenancy, this the law might justly construe to be a wrong and injury to the lord (k), and might give him a reparation in damages against the offender by any action on the case. 7. Disturbance

7. The last and most considerable species of disturbance to be of patronage. noticed, is that of patronage; being a hindrance or obstruction of the patron in presenting 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, who has no right, presents a clerk, who is thereupon admitted and instituted (). In which case, of usurpation, the patron lost by the common law not only his turn of presenting pro 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 meantime he recovered his right by a real action, viz., a writ of right of advowson (m), now abolished (n). The reason given for his losing the present turn, and not ejecting the usurper's 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 (0). And the patron also lost (h) 2 Roll. Abr. 140.

(m) 6 Rep. 49. (i) Hale on F. N. B. 184.

(n) 3 & 4 Will. 4, c. 27, s. 36. (k) Hale, Anal, c. 40; 1 Roll. Abr. 108. (0) Bosiel's Case, 6 Rep. 48. (1) Co. Litt. 277.

the inheritance of his advowson, 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 was disseised of lands or houses; since the only possession of which an advowson is capable, is by actual presen

tation and admission of one's clerk. As, * therefore, when the clerk [ * 302 ]

was once instituted (except in the case of the crown, where he must also be inducted (p)) the church became absolutely full; so the usurper by such plenarty, arising from his own presentation, became in fact seised 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, since another bad 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 was a peculiar writ of right, framed for this special purpose (g): and if a man recovered therein, he regained the possession of his advowson, and was entitled to present at the next avoidance (r). But in order to such recovery he must have alleged a presentation in himself or some of his ancestors, proving him or them to have been once in possession: for, as a grant of the advowson, during the fulness of the church, conveys no manner of possession for the present, therefore a purchaser, until he had presented, had no actual seisin whereon to ground a writ of right (s). Thus stood the common law.

But bishops in ancient 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 Ed. 1, c. 5, s. 2, that if a possessory action were brought within six months after the avoidance, the patron should (notwithstanding such usurpation and institution) recover that very presentation; which gave 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 [ * 303]

the patron, to recover it, was driven to the long and hazardous * pro

cess 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 was thus much narrowed, and the law now 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 disputable; the clerk, by demanding or obtaining institution, which tends to and promotes the same inconvenience; and the ordinary, by refusing to admit

(p) 6 Rep. 49.
(9) F. N. B. 30.

(r) F. N. B. 36.
(s) 2 Inst, 357.


the real patron's clerk, or admitting the clerk of the pretender. These disturbances are vexations and injurious to him who has the right: and therefore, if he be not wanting to himself, he may still have for his relief a writ of quare impedit; in which the patron, not the clerk, is plaintiff. For the law supposes the injury to be offered to the patron only, by obstructing or refusing the admission of his nominee; and not to the clerk, who has no right in him till institution, and of course can suffer no injury.

I proceed therefore to inquire into the nature of a quare Quare impedit.

impedit, now the only action available for the disturbance of patronage: and shall first premise the usual proceedings previous to bring

ing it.

Upon the vacancy of a living, the patron, we know, is * bound to

[ * 304 ] present within six calendar months (t), 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 (u); unless the church be full, or there be notice of any litigation. For if opposition be intended, it is usual for each party to enter a caveat with the bishop, to prevent institution of his antagonist's clerk. An institution after a caveat entered is void by the ecclesiastical law (x); but this the temporal courts pay no regard to, and look upon a caveat as a mere nullity (y). But if two presentations be offered to the bishop upon the same avoidance, the church is then said to become litigious; and, if nothing further 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 patronatús, 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, whatever proceedings may be had afterwards in the temporal courts (z).

The clerk refused by the bishop may also have a remedy against him in the spiritual court, denominated a duplex querela (a): which is a complaint in the

nature of an appeal from the ordinary to his next superior; and Duplex querela.

if the superior court adjudges the cause of refusal to be insufficient, it will grant institution to the appellant (6).

* Thus far matters may go on in the mere ecclesiastical course; but in contested presentations they seldom go so far: for, upon the first

[ * 305 ] delay or refusal of the bishop to admit his clerk, the patron may bring his action of quare impedit against the bishop, for the temporal injury done to his property, in disturbing him in his presentation. And, if the delay arises from the bishop alone, as upon pretence of incapacity, or the like, then he only is sued; 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

(2) 1 Burn, Ecc. L., 9th ed., p. 22, et seq.
(a) Ib. 159.
(6) Ante, vol. i.

(t) Ante, vol. ii.
(u) Ante, vol. i.
(r) 1 Burn, Ecc. L., 9th ed.,
(y) 1 Roll. Rep. 191.

P. 23.

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