damages are under 40s. without any certificate from the judge, or previous notice of the party. The words inferior tradesman are so vague, that the court of Common Pleas were divided in opinion, whether a person who was a surgeon and apothecary came under that description.

It has been decided, that a gentleman's huntsman is not a dissolute person under this act. And where the plaintiff states the defendant in his declaration to be a dissolute person or other person mentioned in the act, if he should not prove him so at the trial, still he may recover a verdict as in a common action of trespass.

CHAPTER XV.

Of Nuisances.

WE now come to the subject of NUISANCES. A nuisance signifies any thing that worketh hurt, inconvenience, or damage. Nuisances are of two kinds; public or common, which affect the public, and are an annoyance to all the king's subjects; and private, which may be defined, any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another.

With regard to such nuisances as are of a public nature, and therefore indictable, they will fall under another division of our work. At present we shall consider the latter description of nuisances.

If a man build a house so near to mine, that his roof overhangs my roof, and throws the water off his roof upon mine; this is a nuisance, for which an action will lie. Likewise to erect a house or other building so near to mine, that it obstructs my ancient lights and windows, is a nuisance. But in this latter case it is necessary that the windows be ancient, that is, have subsisted there a long time without interruption; otherwise there is no injury done. For he hath as much right to build a new edifice upon his ground, as I have upon mine; since every man may erect what he pleases upon the upright or perpendicular of his own soil, so as not to prejudice what has long been enjoyed by another; and it was my folly to build so near another's ground.

Also, if a person keep his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him, and makes the air unwholesome; this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house.

A like injury is, if one's neighbour set up and exercise any offensive trade, as a tanner's, a tallow-chandler's, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; this therefore is an actionable nui

sance. So that the nuisances which affect a man's dwelling may be reduced to these three: 1. Overhanging it; 2. Stopping ancient lights; and, 3. Corrupting the air with noisome smells.

So also it will be a nuisance, if life be made uncomfortable by the apprehension of danger; it has therefore been held to be a nuisance, a misdemeanor, to keep great quantities of gunpowder near dwelling-houses.

But depriving one of a mere matter of pleasure, as of a fine prospect, by building a wall, or the like; this, as it abridges nothing really convenient or necessary, is no injury to the sufferer, and is therefore not an actionable nuisance.

As to nuisance to one's lands: if one erect a smelting-house for lead so near the land of another, that the vapour and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nuisance. And by consequence it follows, that if one do any other act, in itself lawful, which yet being done in that place necessarily tends to the damage of another's property, it is a nuisance: for it is incumbent on him to find some other place to do that act where it will be less offensive. So also, if my neighbour ought to scour a ditch, and do not, whereby my land is overflowed, this is an actionable nuisance.

It is a nuisance to stop or divert water that uses to run to another's meadow or mill; to corrupt or poison a watercourse, by erecting a dye-house or a lime-pit, for the use of trade, in the upper part of the stream; or, in short, to do any act therein, that in its consequences must necessary tend to the prejudice of one's neighbour.

Also, if I have a way annexed to my estate across another's land, and he obstructs me in the use of it, either by totally stopping it, or putting logs across it, or ploughing over it, it is a nuisance: for, in the first case, I cannot enjoy my right at all; and in the latter, I cannot enjoy it so commodiously as I ought.

Also, if I am entitled to hold a fair or market, and another person sets up a fair or market so near mine, that he does me a prejudice, it is a nuisance to the freehold which I have in my market or fair. But, in order to make this out to be a nuisance, it is necessary, 1. That my market or fair be the elder, otherwise the nuisance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine; so that if the new market be not within seven miles of the old one, it is no nuisance: for it is held reasonable that every man should have a market within one third of a day's journey from his own home; that, the day being divided into three parts, he may spend one part in going, another in returning, and a third in transacting his necessary business there.

If such market or fair be on the same day with mine, it is primá facie a nuisance to mine, and there needs no proof of it, but the law will intend it to be so: but if it be on any other day, it may be a nuisance; though whether it is so or not, cannot be intended or presumed, but I must make proof of it to the jury.

If a ferry be erected on a river so near another ancient ferry as to draw away its custom, it is a nuisance to the owner of the old one. For where there is a ferry by prescription, the owner is bound to keep it always in repair aud readiness; it would be therefore extremely hard, if a new ferry were suffered to share his profits, which does not also share his burden.

We are next to consider the remedies the law has provided against nuisances. And first, no action will lie for a public or common nuisance, but an indictment only; and no person, natural or corporate, can have an action for a public nuisance, or punislr it. Yet this rule admits of one exception; where a private person suffers some extraordinary damage, beyond the rest of the king's subjects, by a public nuisance; in which case he shall have a private satisfaction by action. As if, by means of a ditch dug across a public way, which is a common nuisance, a man or his horse suffer any injury by falling therein; there, for this particular damage, which is not common to others, the party shall have his

action.

Also, if a man have, of his own accord, abated or removed a nuisance, he is entitled to no action. For he had choice of two remedies; either without suit, by abating it himself by his own act, or by suit, in which he may both recover damages, and remove it by the aid of the law; but having made his election of one remedy, he is totally precluded from the other.

The remedy by suit is principally by an action on the case for damages; in which the party injured shall only recover a satisfaction for the injury sustained, but cannot thereby remove the nuisance. But every continuance of a nuisance is held to be a fresh one; and therefore a fresh action will lie.

By 1 & 2 Geo. IV. c. 41. which recites, that great inconvenience has arisen from the improper construction as well as negligent use of furnaces employed in the working of engines by steam, and whereas by law every such nuisance, being of a public nature, is abateable as such by indictment, but the expence attending the prosecution has deterred parties suffering thereby from seeking the remedy given by law, it is enacted, that it shall and may be lawful for the court, in case of conviction on any such indictment, to award such costs as shall be deemed proper and reasonable to the prosecutor, to be paid by the party convicted. § 1.

And if it shall appear that the grievance may be remedied by altering the construction of the furnace, it shall be lawful to the court, without the consent of the prosecutor, to make such order as shall be thought expedient for preventing the nuisance in future, before passing final sentence upon the defendant or defendants so convicted. § 2.

These provisions not to extend to any furnaces of steam engines erected solely for the purpose of working mines, or employed solely in the smelting of ores and minerals, or in the manufacturing of the produce of such ores or minerals on or immediately adjoining the premises where they are raised. § 3.

of estovers, if he choose so to consider it; for which he has his remedy to recover possession and damages by assise, if entitled to a freehold in such common; but if he have only a chattel interest, then he can only recover damages by an action on the case for this waste and destruction of the woods out of which his eṣtovers were to issue.

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 courtesy, who was answerable for waste at the common law, or the lessee for life or years, who was first made liable by the Statutes of Marlbridge and of Gloucester) commit or suffer any waste, it is a manifest injury to him that has the inheritance, as it tends to mangle and dismember it of its 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, the law hath given an adequate remedy: but 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.

Yet a parson, vicar, archdeacon, 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.

No person is entitled 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 between the estate of the tenant for life who commits waste, and the subsequent estate of inheritance, there be interposed an estate of freehold to any person in esse, then, during the continuance of such interposed estate, the action of waste is suspended; and if the first tenant for life die during the continuance of such interposed estate, the action is gone for ever.

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

But, besides this preventive redress at common law, the Court of Chancery, upon bill exhibited therein, complaining of waste and destruction, will grant an injunction in order to stay waste, until the defendant shall have put in his answer, and the court shall thereupon make further order; which is now become the most usual way of preventing waste.

A writ of waste is an action partly founded upon the common law, and partly upon the Statute of Gloucester; and may be brought by him who hath the immediate estate of inheritance in reversion or remainder, against the tenant for life, tenant in dower, tenant by the courtesy, or tenant for years. This action is

also maintainable in pursuance of West. 2. by one tenant in common of the inheritance against another, who makes waste in the estate only in common. The equity of which statute extends to joint tenants, but not to coparceners; because, by the old law, coparceners might make partition, whenever either of them thought proper, and thereby prevent future waste; but tenants in common and joint tenants could not; and therefore the statute gave them this remedy, compelling the defendant either to make partition, and take the place wasted to his own share, or to give security not to commit any farther waste. But these tenants in common and joint tenants are not liable to the penalties of the Statute of Gloucester, which extends only to such as have life estates, and do waste to the prejudice of the inheritance. The waste, however, must be something considerable; for if it amount only to twelvepence, or some such petty sum, the plaintiff shall not recover in an action of waste.

The action of waste is a mixed action; partly real, so far as it recovers land; and partly personal, so far as it recovers damages; for it is brought for both those purposes: and if the waste be proved, the plaintiff shall recover the thing or place wasted, and also treble damages, by the Statute of Gloucester.

When the waste and damages are ascertained, either by confession, verdict, or inquiry of the sheriff, judgment is given, in pursuance of the Statute of Gloucester, c. 5. that the plaintiff shall recover the place wasted: for which he has immediately a writ of seisin, provided 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 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,

SUBTRACTION happens when any person who owes any suit, duty, custom, or service to another, withdraws or neglects to perform it. It differs from a disseisin, in that this is committed without any denial of the right, consisting merely of non-performance; that strikes at the very title of the party injured, and amounts to an ouster, or actual dispossession.

Fealty, suit of court, and rent, are duties and services usually issuing and arising ratione tenure, being the conditions upon which the ancient 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 prædial labour,