Page images
PDF
EPUB

verdict against him, the defendant has the hardiness to continue it. Yet the founders of the law of England did not rely upon probabilities merely, in order to give relief to the injured. They have therefore provided two other actions; the alife of nusance, and the writ of quod permittat profternere : which not only give the plaintiff satisfaction for his injury past, but also strike at the root and remove the cause itself, the nusance that occasioned the injury. These two actions however can only be brought by the tenant of the freehold; fo that a lessee for years is confined to his action upon the casez.

2. Analife of nusance is a writ; wherein it is stated that [ 221) the party injured complains of some particular fact done, ad nocumentum liberi tenementi fui, and therefore commanding the sheriff to summon an affise, that is a jury, and view the premises, and have them at the next commission of assises, that justice may be done thereina : and, if the aslıse is found for the plaintiff, he shall have judgment of two things; 1. To have the nusance abated; and 2. To recover damages b. Fornierly an allife of nusance only lay against the very wrong, doer himself who levied, or did, the nusance; and did not lie against any person to whom he had aliened the tenements, whereon the nusance was situated. This was the immediate reason for making that equitable provision in statute Westm. 2. 13 Edw. I. c. 24. for granting a similar writ, in cafu confimili, where no former precedent was to be found. The statute enacts, that “ de caetero non recedant querentes a curia domini regis, pro eo quod tenementum tranfertur de uno in alium;" and then gives the form of a new writ in this case: which only differs from the old one in this, that, where the assise is brought against the very person only who levied the nusance, it is said ' “ quod A. (the « wrongdoer) injuste levavit tale nocumentum ;" but, where the lands are aliened to another person, the complaint is against both ; “ quod A. (the wrongdoer) et B. (the alienee) “ levaverunte.For every continuation, as was before said, z Finch. L. 289.

b9 Rep. 55. F. N. B. 183.

c Ibid.

is a fresh nusance ; and therefore the complaint is as well grounded against the alienee who continues it, as against the alienor who first levied it.

· 3. Before this statute, the party injured, upon any alienation of the land wherein the nusance was set up, was driven to his quod permittat profternere; which is in the nature of a writ of right, and therefore subject to greater delays ". This is a writ commanding the defendant to permit the plaintiff to

abate, quod permittat profternere, the nusance complained of; .222 and, unless he lo permits, to summon him to appear in court,

and shew cause why he will not ®. And this writ lies as well for the alienee of the party first injured, as against the alienee of the party first injuring; as hath been determined by all the judges . And the plaintiff Mall have judgment herein to abate the nusance, and to recover damages against the des fendant,

Both these actions, of file of nufance, and of quod permite
tat profternere, are now out of use, and have given way to the
action on the case; in which, as was before observed, no
judgment can be had to abate the nusance, but only to reco-
ver damages. Yet, as therein it is not necessary that the
freehold should be in the plaintiff and defendant respectively,
as it must be in these real actions, but it is maintainable by
one that hath possession only, against another that hath like
possession, the process is therefore easier: and the effect will
be much the same, unless a man has a very obstinate as well
as an ill-natured neighbour : who had rather continue to pay
damages, than remove his nusance, For in such a cafe, re.
course must at last be had to the old and sure remedies, which
will effectually conquer the defendant's perverseness, by fendo
ing the sheriff with his posje comitatus, or power of the coun,
ty, to level it,
d 2 Inft. 405.

Is Rep. 100, 101.
EF. N. B. 124

[merged small][ocr errors][merged small]

T HE fourth species of injury, that may be offered to

one's real property, is by waste, or destruction on lands and tenements. What Thall be called waste was consider. ed at large in a former volumea, as it was a means of forfeiture, and thereby of transferring the property of real estates. I shall therefore here only beg leave to remind the student, that waste is a spoil and deftruction of the estate, either in houses, woods, or lands; by demolishing not the temporary profits only, but the very substance of the thing; thereby rendering it wild and desolate ; which the common law expresses very significantly by the word vaflum : and that this vastum, or waste, is either voluntary, or permisive; the one by an actual and designed demolition of the lands, woods, and houses; the other arising from mere negligence, and want of sufficient care in reparations, fences, and the like. So that my only business is at present to thew, to whom this waste is an injury; and of course who is entitled to any, and what, remedy by action.

I. The persons, who may be injured by waste, are such as have some interest in the estate wasted; for if a man be the absolute tenant in fee-limple(1), without any incumbrance or

• See vol. II. ch. 18.

(1) A tenant in fee-tail has the same uncontrolled and unlimited power in committing waste, as a tenant in fee-fimple.

charge charge on the premises, he may commit whatever waste his own indiscretion may prompt him to, without being impeachable or accountable for it to any one. And, though his heir is sure to be the sufferer, yet nemo eft haeres viventis: no man is certain of succeeding him, as well on account of the uncertainty which shall die firit, as also because he has it in his own power to conftitute what heir lie pleales, according to the civil law notion of an haeres natus and an haeres factus : or, in the more accurate phraseology of our English law, he may aliene or devise his estate to whomever he thinks proper, and by such alienation or devise may difinherit his heir at law. Into whose hands foever therefore the estate wasted comes, after a tenant in fee-simple, though the waste is undoubtedly damnuin, it is dauruum absque injuria.

One species of interest, which is injured by waste, is that of a person who has a right of common in the place wasted; especially if it be common of eftovers, or a right of cutting and carrying away wood for house-bote, ploughbote, &c. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all pollibility of taking estovers, this is an injury to the commoner, amounting to no less than a diffeilin of his common of estovers, if he chooses so to consider it; for which he has his remedy to recover possession and damages by allise, if entitled to a freehold in such common : but if he has only a chattel intereft, then he can only recover damages by an action on the case for this waste and destruction of the woods, out of which his eftovers were to issue 6.

But the most usual and important interest, that is hurt by this commission of waste, is that of him who hath the remainder or reversion of the inheritance after a particular estate for life or years in being. Here, if the particular tenant, (be it the tenant in dower or by curtesy, who was answerable for waste at the common law, or the lefice for life or years, F. N. B. 59. 9 Rep. 112.

< 2 Int. 299.

who who was first made liable by the statutes of Marlbridged and of Glocestere,) if the particular tenant, I say, commits or suffers any waste, it is a manifest injury to him that has the inheritance, as it tends to mangle and dismember it of it's most desirable incidents and ornaments, among which timber and houses may justly be reckoned the principal. To him therefore in remainder or reversion, to whom the inheritance appertains in expectancy f, the law hath given an adequate remedy. For he, who hath the remainder for life only, is not entitled to sue for waste; since his interest may never perhaps come into possession, and then he hath suffered no injury (2). Yet a parfon, vicar, arch-deacon, prebendary, and the like, who are seised in right of their churches of any remainder or reversion, may have an action of waste; for they, in many cases, have for the benefit of the church and of the successor a fee-simple qualified : and yet, as they are not seised in their own right, the writ of waste shall not say, ad exhaeredationem ipfius, as for other tenants in fee-simple; but ad exhaeredationem ecclesiae, in whose right the fee-simple is holden 6.

II. The redress for this injury of waste is of two kinds; preventive, and corrective: the former of which is by writ of eftrepement, the latter by that of waste,

1. EsTREPEMENT is an old French word, signifying the same as waste or extirpation : and the writ of estrepement lay

[blocks in formation]

(2) No person is entitied to an action of waste against a tenant for life, but he who has the immediate estate of inheritance in remainder or reversion, expectant upon the estate for life. If be. tween the estate of the tenant for life who commits waste, and the subsequent estate of inheritance, there is interposed an estate of freehold to any person in ele, then, during the continuance of such interposed estate, the action of waste is suspended ; and if the first tenant for life dies during the continuance of such interposed eftate, the action is gone for ever. Harg. Co. Litt, 218. b.

« PreviousContinue »