of the waste done, and the damages; and make a return or report of the same to the court, upon which report the judgment is founded. For the law will not suffer so heavy a judgment, as the forfeiture and treble damages, to be passed upon a mere default, without full assurance that the fact is according as it is stated in the writ. But if the defendant appears to the writ, and afterwards suffers judgment to go against him by default, or upon a nihil dicit (when he makes no answer, puts in no plea, in defence), this amounts to a confession of the waste; since, having once appeared, he cannot now pretend ignorance of the charge. Now therefore the sheriff shall not go to the place to inquire of the fact, whether any waste has, or has not, been committed; for this is already ascertained by the silent confession of the defendant: but he shall only, as in defaults upon other actions, make inquiry of the quantum of damages. The defendant, on [229] the trial, may give in evidence anything that proves there was no waste committed, as that the destruction happened by lightning, tempest, the king's enemies, or other inevitable accident. But it is no defence to say, that a stranger did the waste, for against him the plaintiff 5 hath 5 no remedy: though the defendant is entitled to sue such stranger in an action of trespass vi et armis, and shall recover the damages he has suffered in consequence of such unlawful act.a When the waste and damages are thus ascertained, either by confession, verdict, or inquiry of the sheriff, judgment is given, in pursuance of the statute of Glocester, c. 5. that the plaintiff shall recover the place wasted; for which he has immediately a writ of seisin, provided x Poph. 24. y Cro. Eliz. 18. 290. z Co. Litt. 53. a Law of nisi prius. 112. 5 Previously, "has." * Cited, accidental fire, 34 N. H. 225; 51 Mich. 367; 47 Am. Rep. 585. the particular estate be still subsisting (for, if it be expired, there can be no forfeiture of the land), and also that the plaintiff shall recover treble the damages assessed by the jury; which he must obtain in the same manner as all other damages, in actions personal and mixed, are obtained, whether the particular estate be expired, or still in being. CHAPTER THE FIFTEENTH. OF SUBTRACTION. 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. [See note 47, page 319.] It differs from a disseisin, in that this is committed without any denial of the right, consisting merely in non-performance; that strikes at the 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 of the services; whether they be due by virtue of any tenure, or by custom only. I. Fealty, suit of court, and rent, are duties and services usually issuing and arising ratione tenure, being the conditions upon which the antient 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 feodal bond or commune vinculum 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 neighbours 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 [231] prædial labours, or (which is instar omnium) in money, which will provide all the rest; all which are comprized under the one general name of 3 BLACKST.-27. reditus, return, or rent. And the subtraction or nonobservance of any of these conditions, by neglecting to swear fealty, to do suit of court, or to render the rent or service reserved, is an injury to the freehold of the lord, by diminishing and depreciating the value of his seignory. 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 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 the party distreined upon. And for the most part it is provided that distresses be reasonable and moderate; but, in the case of distress for fealty or suit of court, no distress can be unreasonable, immoderate, or too large 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 made. A distress of this nature, that has no bounds with regard to it's quantity, and may be repeated from 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 of 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 [232] a a See pag. 6. 147. b Finch. L. 235. lease for life, etc., 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 personal. [See note 48, page 320.] 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 assise of mort d'ancestor or novel disseisin will lie of rents as well as of lands; if the lord, for the sake of trying the possessory right, will elect to suppose himself ousted or disseised 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 diffused, though not formally abolished by law. Of this species however is, 3. The writ de consuetudinibus et servitiis, which lies for the lord against his tenant, who withholds from him the rents and services due by custom, or tenure, for his land. 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: which lies by the statutes of Glocester, 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 hath 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. And in like manner, by the civil law, if a tenant (who held lands upon pay c 1 Roll. Abr. 595. e Ibid. 151. 1 Ibid. 208. |