wit, on, &c. aforesaid, at, &c. aforesaid, casually lost the said last-men- IN TROVER. tioned goods and chattels out of his possession, and the same then [375] and there came to the possession of the said C. D. by finding. Yet the said C. D. well knowing the said last-mentioned goods and chattels to be the property of the said A. B. as such executor as aforesaid, and of right to belong and appertain to the said A. B. as such executor, but contriving, and fraudulently intending to deceive and defraud the said A. B. as such executor as aforesaid in this behalf, hath not as yet delivered the said last-mentioned goods and chattels, or any part thereof, to him the said A. B. (although often requested so to do) and hath hitherto wholly neglected and refused, and still wholly neglects and refuses so to do, and afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, converted and disposed of the said last-mentioned goods and chattels to his own use. [Conclude, to the damage of the plaintiff, as executor," and with the profert, as ante, 95.] strator. [Commencement as ante, 103, &c.]-For that whereas the said E. F. By an adminiin his lifetime, to wit, on, &c. at, &c. was lawfully possessed, as of his First count on own property, of divers goods and chattels, to wit, &c. of great value intestate's [describe the property, as ante, 370, 1.] to wit, of the value of L., possession (d). and being so possessed, he the said E. F. afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, casually lost the said goods and chattels out of his possession, and the same afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, came to the possession of the said C. D. by finding. Yet the said C. D. well knowing the said goods and chattels to be the property of the said E. F. in his lifetime, and at the time of his death, and after his disease, of right to belong to the said A. B. as administrator aforesaid (to which said A. B.† after the death of the Grant of adsaid E. F. to wit, on, &c. at, &c. aforesaid, administration of all and ministration. singular the goods, chattels, and credits which were of the said E. F. deceased, at the time of his death, who died intestate, by Charles, by [376] Divine Providence, Archbishop of Canterbury, Primate of all England and Metropolitan, in due form of law was granted ;) but contriving, and fraudulently intending craftily and subtly to deceive and defraud the said E. F. deceased, in his lifetime, and the said A. B. as administrator as aforesaid, since the death of the said E. F. in this behalf, did not deliver the said goods and chattels, or any of them, or any part thereof, to the said E. F. in his lifetime, nor hath he as yet delivered the same, or any of them, or any part thereof, to the said A. B. administrator as aforesaid, since the death of the said E. F. although often requested so to dof. And the said C. D. afterwards, and in the (d) As to the counts on the intes- executrix or administratrix; 1 Salk, tates and the administrators posses- 114. 1 Lil. Ent. 70. Bac. Ab. Detinue, sion, and the costs, ante, 373. n. a. 2 A. Saund. 138. n. 2. by baron and feme, IN TROVER. lifetime of the said E. F. to wit, on, &c. aforesaid, at, &c. aforesaid, converted and disposed of the said goods and chattels to his own use. Second count, the lifetime of [When the trover was in the lifetime of the intestate, but the converon a trover in sion after his death, the count runs as above, to the statement of the intestate, and conversion, at the †, and then as follows:]-And the said C. D. afterconversion af wards, and after the death of the said E. F. to wit, on, &c. aforesaid, at, &c. aforesaid, converted and disposed of the said goods and chattels to his own use. ter his death (e). Third count on a trover tate's death, and before grant of ad. ministration (f). And whereas also the said E. F. in his lifetime, to wit, on, &c. aforeafter the intes- said, at, &c. aforesaid, was lawfully possessed of divers other goods and chattels, to wit, &c. [describe the property as ante, 370, 1.] of great value, to wit, &c. as of his own property, and being so possessed thereof, he the said E. F. afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, died so possessed thereof, after whose death, to wit, on, &c. last aforesaid, at, &c. aforesaid, the said goods and chattels came to the possession of the said C. D. by finding. And afterwards, to wit, on, &c. at, &c. administration was granted to the said A. B. as aforesaid, [* 377] (or if this be the first count, state the administration fully, as *ante 375.-Yet the said C. D. well knowing the said goods and chattels to be the property of the said E. F. in his lifetime, and at the time of his death, and to belong to the said A. B. as administrator as aforesaid, after the death of the said E. F. but contriving, &c. to defraud the said A. B. as administrator as aforesaid, in this behalf, hath not as yet, &c. Fourth count [This count is similar to that at the suit of an executor, ante, 374, on possession of the admi- inserting the word "administrator," instead of "executor," and as the nistrator, and general property of the goods draws to it a possession in law, this count conversion af ter the death, may be supported, though the administrator may never have had actual possesssion; 2 Saund. 47. k. ante, 374. n. c.] For an injury [Commencement as ante, 287.]-For that whereas the said A. B. beto plaintiff's fore and at the time of the committing of the grievance hereinafter reversionary interest in goods in pos session of a tenant (g). (e) See the precedent, ante, note, est has been prejudiced, cannot sup374. n. b. port trespass or trover, but must de(ƒ) Com. Dig. Administration, B. clare specially as above; 4 T. R. 489. 10. 2 Rol. Ab. 554. 7 T. R.9. However, in the case of trees cut down & taken away by a stranger, pending a lease, as the interest of the lessee remains no longer than whilst the trees are growing upon the premises, the landlord may support trespass or trover; 7 T. R. 13. Vin. Ab. Trespass, S. pl. 10. 4 Leon. 162. 1 Saund. 322. n. 5. (g) The general property in goods draws to it a possession in law sufficient to enable the owner to maintain trespass or trover, unless the right of possession be in a third person, at the time of the injury complained of; 2 Saund. 47. n. But if the right of possession be in such third person, the gen eral owner, whose reversionary inter next mentioned, was the owner and proprietor of divers goods and chattels, to wit, &c. of great value, to wit, of the value of L-, and which said goods and chattels had been and were before then let to hire to one E. F. for a certain term then to come and unexpired, and the same were then in the possession of the said E. F. under and by virtue of the said letting, to wit, at, &c. Yet the said C. D. well knowing the premises, but contriving and wrongfully and unjustly intending to injure, prejudice, and aggrieve the said A. B. in his reversionary interest and property in the said goods and chattels, and to deprive him of the benefit and advantage thereof, whilst the said A. B. *so was the owner and proprietor of the said goods and chattels, and whilst the same were so let to and in the possession of the said E. F. as aforesaid, to wit, on, &c. at, &c. aforesaid, wrongfully and unjustly seized and took the said goods and chattels of the said A. B. from and out of the possesssion of the said E. F. and converted and absolutely sold and disposed thereof to his own use. [Add a count in trover, and conclude as ante, 287.] IN REVER- [378] III. FOR TORTS TO REAL PROPERTY CORPOREAL. [Commencement as ante, 287. The venue is local, ante, vol. i. Index, For obstructVenue.]-For that whereas the said A. B. before and at the time of the ing ancient windows (h). committing of the grievance hereinafter next mentioned, was and from thence hitherto hath been, and still is, lawfully possessed (i) of a certain (h) See the precedents of declarations for different nuisances to houses in possession. 8 Wentw. Ind. 62. 3 Ld. Raym. 259. Lil. Ent. 81, 2. Mod. Ent. 143. 146.; for erecting a smith's shop, 1 Lutw. 69.; for undermining a house, 2 H. B. 267. 2 Saund. 397.; for obstructing an entrance to a house, 4 T. R 794. As to the law, see Com. Dig. Action Case for a Nuisance. Injury to prospect is no ground of action, 9 Co. 58. The person in actual possession, whether lawfully or not, may support this action against a wrongdoer, 1 East. 244. 1 Show, 7. n. a. Cro. Car. 325. A landlord may also sue for an injury during the tenancy, Com. Dig. Action Case Nuisance, B. but the form of the declaration will in such case be different; see the precedents, post, 383. and 8 Wentw. 548. The action may be either against the party who made or continued the nuisance, Com. (i) Possession in fact is sufficient, TO HOUSES OR LAND IN [* 379] messuage *or dwelling-house, with the appurtenances, situate and being at, &c. (j) in which said messuage or dwelling-house, during all the time aforesaid, there were, and still of right ought to be, (k) divers, to wit, two ancient (1) windows through which the lignt and air, during all the time aforesaid, ought to have entered, and still of right ought to enter into the said messuage or dwelling-house, for the convenient and wholesome use, occupation, and enjoyment, thereof. Yet the said C. D. well knowing the premises, but contriving, and wrongfully and unjustly intending to injure the said A. B. and to deprive him of the use, benefit, and enjoyment of the said windows, and to annoy and incommode him in the use, possession and enjoyment of the said messuage or dwelling-house, with the appurtenances, heretofore, to wit, on, &c. (m) wrongfully and injuriously† erected and raised, and caused and procured to be erected and raised, a certain wall and building, (2) near to the said windows, and wrongfully and injuriously kept and continued the said wall and building so erected and made, for a long space of time, to wit, from the day and year aforesaid, hitherto (o.) By means [380] of which said premises the said messuage or dwelling-house, with the appurtenances, during all the time aforesaid, was, and still is, greatly darkened, and the light and air were and are hindered and prevented from coming and entering into and through the said windows into the said messuage or dwelling-house, and the same hath thereby been rendered and is close, uncomfortable, unwholesome, and unfit for habitation, and the said A. B. hath thereby been and still is greatly annoyed and incommoded in the use, possession and enjoyment of his said mes (j) The venue is local, Com. Dig. Action. N.; but it is not necessary to give a local description of the nuisance; 2 East. 497. 11 East. 226. 1 Taunt. 379. against the lights of another; Yelv. 215, 216 1 Roll. 558. 1 Burr. 248. 9 Co. 58. b. If the mode in which the injury were committed be doubtful, add a count generally for obstructing the light, without stating the means, and which will be sufficient ; 3 Leon. 13. Cro. Jac. 606. Willes. 577. 1 B. and P. 180. Ld. Raym. 452. (k) This is a sufficient statement of the right, 1 Show. 7. 2 Saund. 113. b. (7) It is usual to insert the word "ancient," but it is unnecessary; Com. Dig. Action Nuisance, E. 1. 1 (0) In some cases this adhuc existit Show. 7. Lil. Ent. 81, 82. 2 Saund. would be improper; 1 Show. 366. 3 113. b. 114. Twenty years uninter. Lev. 345. ; and in a declaration in the rupted use of the windows is suffi Common Pleas, it seems more corcient; 3 T. R. 159. 6 Fast. 215. 4 Esp. rect here to insert a particular day, Rep. 70, 71. 2 Saund. 175. n. 2. but in K. B. by bill, the adhuc existit East. $72. is always proper, as the writ may be (m) The day is not material, Cro. issued before the cause of action acEliz. 191. 1 Saund. 24. a. 11 (n) It is not necessary to allege that the building was on a new foundation; though in London a person may build upon an ancient foundation crues. 4 East. 75. 7 T. R. 4.; but in all cases it is improper to declare for damages which can only have accrued after the time of declaring. 2 Saund. 169 to 171, suage or dwelling-house, with the appurtenances. And also by means of the premises, he the said A. B. hath been forced and obliged, for the obtaining light in his said messuage or dwelling-house, to lay out and expend a large sum of money, to wit, the sum of L., in and about the making of a skylight therein, to wit, at, &c. aforesaid. TO HOUSES OR LAND IN POSSESSION. the nuisance [Second count same as the first, to the †, and then proceed as Second count, follows:-"kept and continued, and caused to be kept and continued, for continuing a certain wall and building, before then wrongfully erected and raised (p). near to the said windows, for a long space of time, to wit, hitherto. By means, &c. [Conclude as in the first count.] [381] [Commencement as ante, 287. The venue is local]-For that where- For not reas the said A. B. before and at the time of the committing the griev- pairing a privy adjoining ances hereinafter mentioned, was and from thence hitherto hath been, plaintiff's and still is, lawfully possessed (r) of a certain dwelling-house, with the house (9). appurtenances, situate and being at, &c. and in which said dwellinghouse, with the appurtenances, he the said A. B. and his family, at the times hereinafter mentioned, inhabited and dwelt, and still do inhabit and dwell, to wit, at, &c aforesaid. And whereas also the said C. D. before and at the time of the committing of the grievances hereinaf ter next mentioned, was and from thence hitherto hath been and still is possessed of a certain other dwelling-house, with the appurtenances, and of a certain privy near to the said dwelling-house of the said A. B. to wit, at, &c. aforesaid. And by reason of the possession of his said dwelling-house and privy, with the appurtenances, during all the time hereinafter next mentioned, the said C. D. ought to have repaired, and still of right ought to repair (8), a certain wall adjoining the said privy, and near to the said premises of the said A. B. as often as need or occasion hath been or required, or should be or require, to wit, at, &c. aforesaid. Nevertheless the said C. D. well knowing the premises, but contriving and wrongfully and unjustly intending to injure, prejudice, and aggrieve the said A. B. and to incommode and annoy him and his family in the possession, use, occupation, and enjoyment of his said dwelling-house, with the appurtenances, heretofore, to wit, on, &c. and (f) In a declaration for the continuing of a nuisance, it is not necessary to shew the time when the nuisance was erected. Cro. El. 91. As to this count in general, see Ld. Raym. 370. 1 Salk. 10. Carth. 455. If the ac tion is not brought against the original erector of the nuisance, but against his feoffee, lessee, &c. it is necessary to allege a special request to the defendant to remove the nuisance. Willes. 583. Cro. Jac. 555. 5 Co. 100, (9) See the last precedent, and the (r) This is sufficient, ante, 378. a. i. (8) This allegation of debuit reparare is sufficient. 1 Salk. 360 2 Ld. Raym. 1092. 3 T. R. 766. 2 Saund. 114. a. b. c. |