&re verdict against him, the defendant has the hardinefs to conti- 2. AN affife of nusance is a writ; wherein it is stated that [221] fertur de uno in alium;" and then gives the form of a new writ in this cafe: which only differs from the old one in this, that, where the affife is brought against the very perfon only who levied the nufance, it is faid " quod A. (the "wrongdoer) injufte levavit tale nocumentum;" but, where the lands are aliened to another perfon, the complaint is against both; "quod A. (the wrongdoer) et B. (the alience) "levaverunt." For every continuation, as was before faid, z Finch. L. 289. . F. N. B. 183. R 4 b 9 Rep. 55. c Ibid. is is a fresh nufance; and therefore the complaint is as well grounded against the alienee who continues it, as against the alienor who firft levied it. 3. BEFORE this ftatute, the party injured, upon any alienation of the land wherein the nuance was fet up, was driven to his quod permittat profternere; which is in the nature of a writ of right, and therefore fubject to greater delays. This is a writ commanding the defendant to permit the plaintiff to abate, quod permittat profternere, the nufance complained of; [222] and, unless he fo permits, to fummon him to appear in court, and fhew 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 shall have judgment herein to abate the nufance, and to recover damages against the defendant. BOTH these actions, of affife of nufance, and of quod permittat profternere, are now out of use, and have given way to the action on the cafe; in which, as was before obferved, no judgment can be had to abate the nufance, but only to recover damages. Yet, as therein it is not neceffary that the freehold fhould be in the plaintiff and defendant refpectively, as it must be in thefe real actions, but it is maintainable by one that hath poffeffion only, against another that hath like poffeffion, the process is therefore eafier: and the effect will be much the fame, unless a man has a very obftinate as well as an ill-natured neighbour: who had rather continue to pay damages, than remove his nufance. For in fuch a cafe, recourse must at laft be had to the old and fure remedies, which will effectually conquer the defendant's perverfenefs, by fending the fheriff with his poffe comitatus, or power of the coun ty, to level it. d 2 Inft. 405. © F. N. B. 124. f 5 Rep. 100, 101. CHAPTER THE FOURTEENTH. OF WASTE. THE 'HE fourth fpecies of injury, that may be offered to one's real property, is by waffe, or deftruction on lands and tenements. What fall be called wafte was confidered at large in a former volume, 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 ftudent, that wafte is a fpoil and deftruction of the eftate, either in houses, woods, or lands; by demolishing not the temporary profits only, but the very fubftance of the thing; thereby rendering it wild and defolate; which the common law expreffes very fignificantly by the word vaflum: and that this vaftum, or waste, is either voluntary, or permissive; the one by an actual and designed demolition of the lands, woods, and houses; the other arifing from mere negligence, and want of fufficient care in reparations, fences, and the like. So that my only bufinefs is at prefent to fhew, to whom this wafte is an injury; and of course who is entitled to any, and what, remedy by action. I. THE perfons, who may be injured by wafte, are fuch as have fome intereft in the estate wafted; for if a man be the abfolute tenant in fee-fimple (1), without any incumbrance or See vol. II. ch. 18. (1) A tenant in fee-tail has the fame uncontrolled and unlimited power in committing wafte, as a tenant in fee-fimple. charge charge on the premifes, he may commit whatever wafte his own indiscretion may prompt him to, without being impeachable or accountable for it to any one. And, though his heir is fure to be the fufferer, yet nemo eft haeres viventis.: no man is certain of fucceeding him, as well on account of the uncertainty which fhall die firft, as alfo becaufe he has it in his own power to conftitute what heir he pleafes, 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 devife his eflate to whomever he thinks proper, and by fuch alienation or devife may difinherit his heir at law. Into whofe hands foever therefore the eftate wafted comes, after a tenant in fee-fimple, though the wafte is undoubtedly damnum, it is damnum abfque injuria. ONE fpecies of intereft, which is injured by wafte, is that of a person who has a right of common in the place wafted; 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 deftroys all poflibility of taking eftovers, this is an injury to the commoner, amounting to no less than a diffeifin of his common of eftovers, if he chooses so to confider it; for which he has his remedy to recover poffeffion and damages by aflife, if entitled to a freehold in fuch common: but if he has only a chattel intereft, then he can only recover damages by an action on the cafe for this waste and destruction of the woods, out of which his eftovers were to iffue". BUT the moft ufual and important intereft, that is hurt by this commiffion of wafte, is that of him who hath the remainder or reverfion 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 curtefy, who was answerable for waste at the common law, or the leffee for life or years, c 2 Inft. 299. F. N. B. 59. 9 Rep. 112. who J 225 who was first made liable by the ftatutes of Marlbridged and of Glocefter,) if the particular tenant, I fay, commits or suffers any wafte, it is a manifeft injury to him that has the inheritance, as it tends to mangle and difmember it of it's moft defirable 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 fue for wafte; fince his intereft may never perhaps come into poffeffion, and then he hath fuffered no injury (2). Yet a parson, vicar, arch-deacon, prebendary, and the like, who are seised in right of their churches of any remainder or reverfion, may have an action of wafte; for they, in many cafes, have for the benefit of the church and of the fucceffor a fee-fimple 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-fimple; but ad exhaeredationem ecclefiae, in whose right the fee-fimple is holden 8. 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, fignifying the fame as waste or extirpation: and the writ of eftrepement lay (2) No perfon is entitied to an action of waste against a tenant for life, but he who has the immediate eftate of inheritance in remainder or reverfion, expectant upon the eftate for life. If between the estate of the tenant for life who commits wafte, and the fubfequent eftate of inheritance, there is interpofed an estate of freehold to any perfon in effe, then, during the continuance of fuch interpofed eftate, the action of wafte is fufpended; and if the first tenant for life dies during the continuance of fuch interpofed eftate, the action is gone for ever. Harg. Co. Litt, 218. b. |