is obstructed in the use of it, either by its being totally stopped, or by logs put across it, or by ploughing over it, by which means he cannot enjoy his right of way; or, at least, enjoy it so commodiously as he ought to do, he may have his remedy by an action on the case to recover damages.

Again, 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.

Likewise if a ferry is 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 and readiness, for the use of all the Queen's subjects; otherwise he may be amerced. It would be therefore extremely hard if the owner of a new ferry were suffered to share his profits, who does not also share his burthen. But where the reason ceases, the law also ceases with it; therefore it is no nuisance to erect a mill so near mine as to draw away the custom, unless the miller also intercepts the water. Neither is it a nuisance to set up any trade, or a school, in the neighbourhood or in rivalship with another; for by such competition the public are like to be gainers; and, if the new mill or school occasion any damage to the old one, it is damnum absque injuria.

The remedy at law in the case of a public nuisance is by indictment at the instance of the Attorney-General.

In the case of a private nuisance, the remedy at law is by action of trespass on the case, for damages; the remedy in equity is by bill, praying for an injunction to remove the nuisance.

Where a public nuisance is also a private nuisance, the individual thus aggrieved may have his private remedy at law by action on the case, for damages; or in equity, by bill for an injunction.

* See "Bill in Chancery," page 243.

An action for nuisance will not lie, nor a bill for an injunction be entertained, unless evidence be given of damage resulting from the nuisance.

IV. WASTE.-Waste is a spoil and destruction of an estate by the tenant either in houses, woods, or lands during the continuance of his particular estate therein, by demolishing, not the temporary profits only, but the very substance of the thing, thereby rendering it wild and desolate. The common law expresses this waste by the word vastum; and this vastum, or waste, is either voluntary, or permissive; the one by an actual designed demolition of the lands, woods, or houses; the other arising from mere negligence and want of sufficient care in reparations, fences, and the like.*

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-simple, without any incumbrance or charge on the premises, he may commit whatever waste his own discretion may prompt him to do, without being impeachable or accountable for it to any one. And though his heir is sure to be the sufferer, yet nemo est hæres viventes: no man is certain of succeeding him, as well on account of the uncertainty which shall die first, as also because he has it in his own power to constitute what heir he pleases, according to the civil law notion of a hæres natus and a hæres factus; or, in the more accurate phraseology of our English law, he may aliene or devise his estate to whomsoever he thinks proper, and by such alienation or devise may disinherit his heir-at-law.

One species of interest which may be injured by waste, is that of a person who has a right of common in the place wasted, especially if it be common of estovers, or a right of cutting and carrying away wood for house-bote, plough-bote, &c. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this is an injury to the commoner, for which he may have his remedy by an action on the case.

A mortgagee in possession will be restrained from cutting down timber, and so will a mortgagor in possession.

* See 17 & 18 Vict., c. 125 s. 79.

The most important interest that is hurt by this commission of waste is that of him who has the remainder or reversion after a particular estate for life or years; so if the tenant for life or years commit or suffer any waste, the law now gives an adequate remedy to him in remainder or reversion to whom the inheritance appertains in expectancy, by an action on the case, to recover such damage as a jury may award; or by bill in Chancery praying for an injunction to restrain the tenant from committing waste which may be threatened.

V. DISTURBANCE.-A wrong may be done to an incorporeal hereditament by hindering and disquieting the owner in his regular and lawful enjoyment of it. Such may be constituted by disturbance:-1. Of a Franchise. -2. Of a Common.- -3. Of a

Way. 4. Of Tenure.-5. Of Patronage.

1. Disturbance of a franchise happens when a man has the franchise of holding a court-leet, of keeping a fair or market, of free warren, of taking toll, of seizing waifs or estrays, or any other species of franchise, and he is disturbed in the lawful exercise thereof by which his property is damnified; he is entitled to sue for damages by a special action on the case; if for toll, the owner may take a distress if he pleases.

2. The disturbance of common occurs where an act is done by which the right of another to his common is incommoded or diminished, which may happen when a stranger who has no right of common, puts in cattle. Or by surcharging it; that is, putting more cattle therein than the pasture or herbage will reasonably sustain, or the party has a right to do. In all cases of disturbance the commoner may bring an action on the case to recover damages; and in cases of surcharging the common, by distraining or impounding so many of the beasts as are above the accustomed number.

3. The disturbance of ways happens when a person who has a right of way over another's grounds by grant or prescription is obstructed by enclosures or other obstacles; or, by ploughing across it, by which means he cannot enjoy his right of way; or, at least, not in so commodious a manner as he ought to do. The remedy for such disturbance is by an action on the case to recover damages; or by bill in Chancery for an injunction.

DISTURBANCE OF PATRONAGE.

245

4. The disturbance of tenure occurs where a stranger, either by menaces or threats, or by unlawful distresses, or by fraud, contrives to drive a tenant away, or inveigle him to leave his tenancy. This the law justly construes to be a wrong and an injury; the usual remedy for which is an action on the case to recover damages.

5. The disturbance of patronage is a hindrance or obstruction of a patron to present his clerk to a benefice. This happens when a stranger who has no right presents a clerk, who is thereupon admitted and instituted, by which usurpation the patron, by the common law, lost not only his turn of presenting pro hâc vice, but also the absolute and perpetual inheritance of the advowson, so that he could not present again upon the next vacancy unless in the meantime he recovered his right by a real action.* The reason given for his losing the present turn and not being able to eject the usurper's clerk was, that the final intent of the law in creating this species of property being to have a fit person to celebrate divine service, it preferred the peace of the Church, provided a clerk were once admitted and instituted, to the right of any patron whatever. Usurpation now gains no right to the usurper with regard to any future avoidance, but only to the present vacancy if not remedied within six months; and during those six months it is only a species of disturbance. remedy is a writ of quare impedit, now the only action for the disturbance of patronage, in which the patron, not the clerk, is plaintiff. It is commenced by a writ of summons in the same manner and form as in an ordinary action.

The

After an adverse possession of one hundred years, the right to an advowson is extinguished.

* A writ of right of advowson is now abolished.

1 See 6 & 7 Vict., c. 54; and 23 & 24 Vict., c. 126, s. 26.

CHAPTER IX.

INJURIES PROCEEDING FROM OR AFFECTING THE

CROWN.

Having considered the Injuries or Private Wrongs that may be offered by one subject to another, and how they are remedied, let us now inquire into the mode of redressing those 'Injuries" to which the Crown itself is a party,—injuries where the Crown is the aggressor, or the sufferer, and which are remedied by peculiar forms of process, appropriate to the Royal prerogative. In treating therefore of these, let us consider first the manner of redressing those wrongs or injuries which a subject may suffer from the Crown; and then of redressing those which the Crown may receive from a subject.

Explain the Redress of Wrongs inflicted by the Crown.

"That the Sovereign can do no wrong" is a necessary and fundamental principle of the English Constitution; meaning that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the Sovereign; and secondly, that the prerogative of the Crown extends not to do an injury; for, being created for the benefit of the people, it ought not to be exercised to their prejudice. Whenever, therefore, it happens that through misinformation or inadvertence the Crown has been induced to invade the private rights of any of its subjects, though no action or suit will lie against the Sovereign, yet the law has furnished the subject with a decent and respectful mode of removing that invasion by informing the Crown of the true state of the matter