nufance 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 fpend one part in going, another in returning, and the third in transacting his neceffary business there. If fuch market or fair be on the fame day with mine, it is prima facie a nufance to mine, and there needs no proof of it, but the law will intend it to be fo: but if it be on any other day, it may be a nufance; though whether it is fo or not, cannot be intended or prefumed, but I must make proof of it to the jury. If a ferry is erected on a river, so near another antient ferry as to draw away it's custom, it is a nusance 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, and readiness, for the eafe of all the king's fubjects; otherwife he may be grieviously amerced: it would be therefore extremely hard, if a new ferry were suffered to share his profits, which does not also fhare his burthen. But where the reafon ceases, the law alfo ceafes with it: therefore it is no nufance to erect a mill fo near mine, as to draw away the custom, unless the miller alfo intercepts the water. Neither is it a nufance to fet up any trade, or a school, in neighbourhood or rivalship with another for by such emulation the public are like to be gainers; and, if the new mill or school occafion a damage to the old one, it is damnum abfque injuria`.

II. LET us next attend to the remedies, which the law has given for this injury of nufance. And here I must premife that the law gives no private remedy for any thing but a private wrong. Therefore no action lies for a public or common nusance, but an indictment only: because the damage being common to all the king's fubjects, no one can affign his particular proportion of it; or if he could, it would be extremely hard, if every subject in the kingdom were allowed to harafs the offender with feparate actions. For this reafon, no perfon, natural or corporate, can have an action for a public nufance, or punish it; but only the king in his public capa

$ 2 Roll. Abr. 140.

Hale on F. N. B. 184.

city of fupreme governor, and pater-familias of the kingdom". Yet this rule admits of one exception; where a private person fuffers fome extraordinary damage, beyond the rest of the king's fubjects, by a public nusance; in which cafe he shall have a private fatisfaction by action. As if, by means of a ditch dug across a public way, which is a common nufance, a man or his horfe fuffer any injury by falling therein; there, for this particular damage, which is not common to others, the party fhall have his action". Alfo if a man hath abated, or removed, a nusance which offended him, (as we may remember it was stated in the first chapter of this book, that the party injured hath a right to do) in this cafe he is entitled to no action *. For he had choice of two remedies; either without fuit, by abating it himself, by his own mere act and authority; or by fuit, 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 remedies by fuit are, 1. By action on the case for damages; in which the party injured fhall only recover a fatisfaction for the injury sustained; but cannot thereby remove the nufance. Indeed every continuance of a nusance is held to be a fresh one; and therefore a fresh action will lie, and very exemplary damages will probably be given, if, after one 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 affife of nufance, and the writ of 'quod permittat profternere : which not only give the plaintiff fatisfaction for his injury paft, but also ftrike at the root and remove the cause itself, the nufance that occafioned the injury. These two actions however can only be brought by the tenant of the freehold ; fo that a leffee for years is confined to his action upon the cafe 2.

2. AN affife of nufance is a writ; wherein it is stated that the party injured complains of fome particular fact done, ad nocumentum liberi tenementi fui, and therefore commanding the fheriff to fummon an affife, that is a jury, and view the premifes, and have them at the next commiffion of affifes, that juftice may be done therein: and, if the aflife is found for the plaintiff, he shall have judgment of two things; 1. To have the nufance abated; and 2. To recover damages. Formerly an affife of nufance only lay against the very wrongdoer himself who levied, or did, the nufance; and did not lie against any perfon to whom he had aliened the tenements, whereon the nufance was fituated. This was the immediate reason for making that equitable provision in statute Westm. 2. 13 Edw. I. c. 24. for granting a fimilar writ, in cafu confimili, where no former precedent was to be found. The ftatute enacts, that " de caetero non recedant "querentes a curia domini regis, pro eo quod tenementum trans" 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 nusance, 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 alienee) "levaverunt." For every continuation, as was before said, is a fresh nufance; 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 ftatute, the party injured, upon any alienation of the land wherein the nusance was fet 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 nufance complained of;

and, uniefs 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 alience of the party firft injured, as against the alienee of the party first injuring; as hath been determined by all the judges. And the plaintiff fhall 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 neceflary that the freehold should 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 procefs is therefore cafier: 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 last be had to the old and fure remedies, which will effectually conquer the defendant's perverfeness, by fending the sheriff with his poffe comitatus, or power of the county, to level it.

CHAPTER THE FOURTEENTH.

OF

WASTE.

THE

HE fourth fpecies of injury, that may be offered to one's real property, is by wafle, or deftruction in lands and tenements. What fhall 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 eftates. I fhall therefore here only beg leave to remind the student, that wafte is a spoil and deftruction of the eflate, 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 exprefles very fignificantly by the word vaflum: and that this vaftum, or wafte, is either voluntary, or permiffive; the one by an actual and defigned 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 business is at prefent to fhew, to whom this wafte is an injury; and of courfe 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 eftate wafted; for if a man be the abfolute tenant in fee-fimple, without any incumbrance or charge on the premifes, he may commit whatever wafte his