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SUBTRACTION, which is the fifth species of injuries affecting a man’s real property, happens, when any person who owes any suit, duty, custom, or service to another, withdraws or neglects to perform it. It differs from a disseizin, in that this is committed without any denial of the right, consisting merely in non-performance; that strikes at very title of the party injured, and amounts to an ouster or actual dispossession. Subtraction however, being clearly an injury, is remediable by due course of law: but the remedy differs according to the nature, or by custom only.
I. FEALTY, suit of court, and rent, are duties and services usually issuing and arising ratione tenurae [by reason of the tenure], being the conditions upon which the ancient lords granted out their lands to their feudatories: whereby it was stipulated, that they and their heirs should take the oath of fealty or fidelity to their lord, which was the feudal bond or commune vinculum [common bond] between lord and tenant; that they should do suit, or duly attend and follow the lord’s courts, and there from time to time give their assistance, by serving on juries, either to decide the property of their neighbors in the court-baron, or correct their misdemeanors in the court-leet; and, lastly, that they should yield to the lord certain annual stated returns, in military attendance, in provisions, in arms, in matters of ornament or pleasure, in rustic employments or praedial labor, or (which is instar omnium [equal to all]) 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 nonobservance of any these conditions, by neglecting, to swear fealty, to do suit of court, or to render the rent or service reserved, is an injury to freehold of the lord, by diminishing and depreciating the value of his seigniory.
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. The nature of distresses, their incidents and consequences, we have before more than once explained:1 it may here suffice to remember, that they are a taking of beasts, or other personal property, by way of pledge to enforce the performance of something due from that distresses be reasonable and moderate; but, in the case so distress fealty or suit of court, no distress can be unreasonable, immoderate, or too large:2 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 to its quantity, and may be repeated from time to time, until the stubbornness of the party is conquered, is called a distress infinite; which is also used for some other purposes, as in summoning jurors, and the like.
OTHER remedies for subtraction of rents or services are, 1. By action of debt, for the breach of this express contract, of which enough has been formerly said. 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, etc, no action of debt lay by the common law, during the continuance of the freehold out of which it issued:3 for the law would not suffer a real injury to be remedied by an action that was merely personal. 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 such freehold rents. 2. An assize of mort d’ ancestor [death of ancestor] or novel disseizin will lie of rents as well of land;4 if the lord, for the sake of trying the possessory right, will elect to suppose himself ousted or disseized thereof. This is now seldom heard of; and all other real actions, being in the nature of writs of right, and therefore more dilatory in their progress, are entirely disused, though not formally abolished by law. Of this species however is, 3. The writ de consuetudinibus et servitiis [of customs and services], which lies for the lord against his tenant, who withholds from him the rents and services due by custom, or tenure, for his land.5 This compels a specific payment or performance of the rent or service; but there are also others, whereby the lord shall recover the land itself in lieu of the duty withheld. As, 4. The writ of cessavit [he has ceased]: which lies, by the statutes of Gloucester, 6 Edw. I. c. 4.and of Westm. 2. 13 Edw. I. c. 21&41;. when a man who holds lands of a lord by rent or other services, neglects or ceases to perform his services for two years together; or where a religious house has lands given it, on condition of performing some certain spiritual service, as reading prayers or giving alms, and neglects it; in either of which cases, if the cesser or neglect have continued for two years, the lord or donor and his heirs shall have a writ of cessavit to recover the land itself, eo quod tenens in faciendis servitiis per biennium jam cessavit.6 [“Because the tenant has already ceased to do service for two years.”] And in like manner, by the civil law, if a tenant, (who held lands upon payment of rent or services, or as they call it “jure emphyteutico,”) neglected to pay or perform them per totum triennium [for three whole years], he might be ejected from such emphyteutic lands.7 But by the statute of Gloucester, the cessavit does not lie for lands let upon fee-simple rents, unless they have lain fresh and uncultivated for two years, and there be not sufficient distress upon the premises; or unless the tenant has so enclosed the land, that the lord cannot come upon it to distrain.8 For the law prefers the simple and ordinary remedies, by distress, or by the actions just now mentioned, to this extraordinary one of forfeiture for a cessavit; and therefore the same statute of Gloucester has provided farther, that upon tender of arrears and damages before judgment, and giving security for the future performance of the services, the process shall be at an end, and the tenant shall retain his land. And to this the statute of Westm.2. conforms, so far as may stand with convenience and reason of law.9 It is easy to observe, that the statute 4 Geo.II. c.28. which was mentioned in a former chapter,10 and which permits landlords who have 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 distress on the premises; it is easy, I say, to observe, that this provision is in some measure copied from the ancient writ of cessavit: especially as it may be satisfied and put an end to in a similar manner, by tender of the rent and costs within six months after. 5. There is also another very effectual remedy, which takes place when the tenant upon a writ of assize for rent, or on a replevin, disowns or disclaims his tenure, whereby the lord loses his verdict: in which case the lord may have a writ of right, sur disclaimer [on disclaimer], grounded on this denial of tenure; and shall, upon proof the tenure, recover back the land itself so held, as a punishment to the tenant for such his false disclaimer.11 This piece of retaliating justice, whereby the tenant who endeavors to defraud his lord is himself deprived of the estate, as it evidently proceeds upon feudal principles, so it is expressly to be met
with in the feudal constitutions:12 “vassallus, qui abnegavit feudum ejusve conditionem, exspoliabitur.” [“The vassal who denies his fee or the condition (by which he held it) shall be deprived.”]
AND, as on the one hand the ancient law provided these several remedies to obviate the knavery and punish the ingratitude of the tenant, so on the other hand it was equally careful to redress the oppression of the lord; by furnishing, 1. The writ of ne injuste vexes [do not unjustly oppress];13 which is an ancient writ founded on that chapter14 of Magna Carta, which prohibits distresses for greater services than are really due to the lord; being itself of the prohibitory kind, and yet in the nature of a writ of right.15 It lies, where the tenant in fee-simple and his ancestors have held of the lord by certain services; and the lord has obtained seizin of more or greater services, by the inadvertent payment or performance of them by the tenant himself. Here the tenant cannot in an avowry avoid the lord’s possessory right, because of the seizin given by his own hands; but is driven to this writ, to divest the lord’s possession, and establish the mere right of property, by ascertaining the services, and reducing them to their proper standard. But this writ does not lie for tenant in tail; for he may avoid such seizin of the lord, obtained from the payment of this ancestors, by plea to an avowry in replevin.16 2. The writ of mesne, de medio; which is also in the nature of a writ of right,17 and lies, when upon a subinfeudation the mesne or middle lord18 suffers his under-tenant, or tenant paravail, to be distrained upon by lord paramount, for the rent due to him from the mesne lord.19 And in such case the tenant shall have judgment to be acquitted (or indemnified) by the mesne lord; and if he makes default therein, or does not appear originally to the tenant’s writ, he shall be forejudged of his mesnalty, and the tenant shall hold immediately of the lord paramount himself.20
II. THUS far of the remedies for subtraction of rents or other services due by tenure. There are also other services, due by ancient custom and prescription only. Such is that of doing suit to another’s mill: where the persons, resident in a particular place, by usage time out of mind have been accustomed to grind their corn at a certain mill; and afterwards any of them go to another mill, and withdraw their suit, (their secta, a sequendo) from the ancient mill. This is not only a damage, but an injury, to the owner; because this not only a damage, but an injury, to the owner; because this prescription might have a very reasonable foundation; viz. upon the erection of such mill by the ancestors of the owner for the convenience of the inhabitants, on condition, that, when erected, they should all grind their corn there only. And for this injury the owner shall have a writ de secta ad molendinum [for suit at his mill],21 commanding the defendant to do his suit at that mill, quam ad illud facere debet, et solet [which he ought, and usually did], or show good cause to the contrary: in which action the validity of the prescription may be tried, and if it be found for the owner, he shall recover damages against the defendant.22 In like manner, and for like reasons, the register23 will inform us, that a man may have a writ of secta ad furnum, secta ad torrale, et ad ominia alia hujusmodi [suit at the oven, suit at the kiln, and all others of the same kind]; for suit due to his furnum, his public oven or bakehouse; or to his torrale, his kiln, or malthouse; when a person’s ancestors have erected a convenience of that sort for the benefit of the neighborhood, upon an agreement (proved by immemorial custom) that all the inhabitants should use and resort to it, when erected. But besides these special remedies for subtractions, to compel the specific performance of the service due by custom; an action on the case will also lie for all of them, to repair the party injured in damages. And thus much for the injury of subtraction.
NOTES
1. See pag. 6. 147.
2. Finch. L. 285.
3. 1 Roll. Abr. 595.
4. F.N.B. 195.
5. Ibid. 151.
6. Ibid 208.
7. Cod. 4. 66. 2.
8. F.N.B. 209. 2 Inst. 298.
9. 2 Inst. 401, 460.
10. See pag. 206.
11. Finch L. 270, 271.
12. Feud. l.2.t.26.
13. F.N.B. 10.
14. C.10.
15. Booth. 126.
16. F.N.B. 11. 2 Inst. 21.
17. Booth. 136.
18. See book II. ch. 5. pag. 59, 60.
19. F.N.B. 135.
20. 2 Inst. 374.
21. F.N.B. 123.
22. Co.Entr. 461.
23. fol. 153.
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