poreal things as of the same nature with trespass that we o've the modern decisions, by which the mere infringement of a right is actionable without showing damage. (Ashby v. White, Raym. Ld. 938; 1 Smith's Lead. Cas. 472; Harrop v. Hirst, Law R. 4 Ex. 43.)

The incorporeal thing is regarded as subject to a trespass a notion that probably antedated the statute Westm. 2, and the formal distinction of trespass and case, direct and indirect actions-and thus injuria, whether damnum is shown or not. This began with actions for disturbance of common and the like. (1 Saund. 346 b; 2 Black. W. 1233; 4 Term Rep. 71; 2 East, 154.) And the notion that the wrong-doer might by repetition gain a right, i. e., destroy the plaintiff's right, is a modern version of the same notion.

CHAPTER THE SIXTEENTH.

OF DISTURBANCE.

The sixth and last species of real injuries is that of disturbance; which is usually a wrong done to some incorporeal hereditament, by hindering or disquieting the owners in their regular and lawful enjoyment of it. I shall consider five sorts of this injury; viz. 1. Disturbance of franchises. 2. Disturbance of common. 3. Disturbance of ways. 4. Disturbance of tenure. 5. Disturbance of patronage.

I. Disturbance of franchises happens, when a man has the franchise of holding a court-leet, of keeping a fair or market, of free-warren, of taking toll, of seising waifs or estrays, or (in short) any other species of franchise whatsoever; and he is disturbed or incommoded in the lawful exercise thereof. As if another by distress, menaces, or persuasions, prevails upon the suitors not to appear at my court: or obstructs the passage to my fair or market; or hunts in my free-warren; or refuses to pay me the accustomed toll; or hinders me from seising the waif or estray, whereby it escapes or is carried out of my liberty: in every case of this kind, which it is impossible here to recite or suggest, there is an injury done to the legal owner; his property is damnified, and the profits arising from such his franchise are diminished. To remedy which, as the law has given no other writ, he is [237] therefore entitled to sue for damages by a special action on the case: or, in case of toll, may take a distress if he pleases.*

II. The disturbance of common comes next to be considered; where any act is done, by which the right of another to his common is incommoded or dimina Finch. L. 187. *Cited, 6 How. 534.

b Cro. Eliz. 558.

ished. This may happen, in the first place, where one who hath no right of common, puts his cattle into the land; and thereby robs the cattle of the commoners of their respective shares of the pasture. Or if one, who hath a right of common, puts in cattle which are not commonable, as hogs and goats; which amounts to the same inconvenience. But the lord of the soil may (by custom or prescription, but not without) put a stranger's cattle into the common ;" and also, by a like prescription for common appurtenant, cattle that are not commonable may be put into the common. The lord also of the soil may justify making burrows therein, and putting in rabbets, so as they do not increase to so large a number as totally to destroy the common. But in general, in case the beasts of a stranger, or the uncommonable cattle of a commoner, be found upon the land, the lord or any of the commoners may distrein them damage-feasant: or the commoner may bring an action on the case to recover damages, provided the injury done be anything considerable: so that he may lay his action with a per quod, or allege that thereby he was deprived of his common. But for a trivial trespass the commoner has no action; but the lord of the soil only, for the entry and trespass committed.s

Another disturbance of common is by surcharging it; or putting more cattle therein than the pasture and herbage will sustain, or the party hath a right to do. In this case he that surcharges does an injury to the rest of the owners, by depriving them of their respective portions, or at least contracting [238] them into a

Trespass here is used in the broad sense of any wrong, as defined on page 287 (see note at foot of that page), as is shown by the rule here given. In trespass vi et armis the action lies, however trivial the damage

smaller compass. This injury by surcharging can properly speaking only happen, where the common is appendant or appurtenant, and of course limited by law; or where, when in gross, it is expressly limited and certain for where a man hath common in gross, sans nombre or without stint, he cannot be a surcharger. However, even where a man is said to have common without stint, still there must be left sufficient for the lord's own beasts: for 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 distreining 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. But the 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 viontiel, being directed to the sheriff (vice-comiti), 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

h See book II. ch. 3,

Roll. Abr. 399.

j Freem. 273.

k 2 Inst. 369. Finch. L. 314.

have, surcharged the common; as well the plaintiff, as the defendant. The execution of this writ must be by a jury of twelve men, who are upon their [239] 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: 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; a thing which, though possible in law,° does in fact very rarely exist. If, after 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 tenor 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 "inadventure; 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.

1 F. N. B. 125.

m

n

9

ninth.

O Lord Raym. 407.
F. N. B. 126. 2 Inst. 370.

"Inadvertence" is the reading of all editions but the eighth and

3 BLACKST. - 28.