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plaintiff in attempting to remove the nusance. Where plaintiff declared that before, and at the time of committing the grievance, he was navigating his barges laden with goods, along a public navigable creek, and that defendant wrongfully moored a barge across, and kept the same so moored, from thence hitherto, and thereby obstructed the public navigable creek, and prevented the plaintiff from navigating his barges so laden, per quod plaintiff was obliged to convey his goods a great distance over land, and was put to trouble and expense in the carriage of his goods over land: held, that this was sufficient special damage, for which an action upon the case would lie. Where there is direct special damage, an action on the case lies for not repairingi as well as for a nusance in a highway, if an individual is liable to repair; but otherwise, where the county or parish is to repair the highwayk.

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II. By whom and against whom an Action for a Nusance may be maintained.

If the nusance be to the damage of the reversionary as well as the possessory interest, an action may be brought as well by the reversioner1 as by the tenant in possession, and each will be entitled to recover damages commensurate with the injuries, which their respective interests may have sustained. If any thing be done to destroy the evidence of title, an action is maintainablem by the reversioner. Reversioner may maintain an action for the obstruction of an ancient light, and, in the event of its not being removed, for the continuance". But where the acts of trespass did not amount to any permanent injury to the land, but only tended to establish a right of way, it was holden, that the reversioner could not maintain an action on the case in respect thereof. If the house, &c. affected by the nusance be aliened, the alienee, after request made to remove or abate the nusance, may main

h Rose v. Miles, 4 M. & S. 101.

i 1 Inst. 56. a. n. (2.) Hargrave's ed. k Russell v. Men of Devon, 2 T. R. 671.

1 Bedingfield v. Onslow, 3 Lev. 209. Leader v. Moxon, 3 Wils. 461. 2 Bl. R. 924. S. C.

m Young v. Spencer, 10 B. & C. 152. See also Alston v. Scales, 9 Bingh. 3. n Shadwell v. Hutchinson, 2 B. & Ad. 97.

o Baxter v. Taylor, 4 B. and Ad. 72. 1 Nev. & M. 13. N. This action was brought before the stat. 2 & 3 W. 4. c. 71. See s. 8.

tain an action for the nusance P. Tenants in common may join in an action to recover damages for a nusance, which concerns the tenements which they hold in common. The action may be maintained against the person who erects the nusance, or his alienee, who permits the nusance to be continued. If the party, against whom a verdict in an action of this kind has been recovered, does not abate the nusance, another action may be brought for continuing the nusance, in which the jury will be directed to give large damages. N. It is usual in the first action, to give nominal damages only, which, however, entitle the plaintiff to full costs. Tenant for years erected a nusance, and afterwards made an under-lease to I. S. The question was, whether, after a recovery against the first tenant for years for the erection, an action would lie against him for the continuance, after he had made an under-lease? Et per cur. it lies; for he transferred it with the original wrong, and his demise affirms the continuance of it; he hath also rent as a consideration for the continuance, and therefore ought to answer the damage it occasions. Vide Wm. Jones, 272. Receipt of rent is upholding. Cro. Jac. 373. 555. The action lies against either at the plaintiff's election. Case lies against the landlord of a house demised by lease, who, under his contract with his tenants, employs workmen to repair the house, for a nusance in the house occasioned by the negligence of his workmens.

The trustees of a turnpike road, empowered by stat. to make water-courses, to prevent the road from being overflowed, directed their surveyor to present a plan for carrying off the water of an adjacent brook: he recommended, and on that recommendation they adopted, and caused him to make, a wide channel from the road, gradually narrowing, and conducting the water into the ordinary fence-ditches of the plaintiff's land, which were insufficient to discharge it, and his land was consequently overflowed. It was holdent that the action did not lie against the defendant who was one of the trustees, and the chairman, who had signed the order for cutting this trench; for the defendant was not a volunteer: he executed a duty imposed on him by the legislature, which he was bound to execute; and he had exercised his best skill, diligence, and caution in the execution of it. But a surveyor of highway, who had subtracted a portion of a

p Penruddock's Case, 5 Rep. 101. a. q 5 Rep. 100. b.

r Rosewell v. Prior, Salk. 460.

s Leslie v. Pounds, 4 Taunt. 649.

t Sutton v. Clarke, 6 Taunt. 29.

bank by the road side, was holden liable in an action on the case at the suit of the reversioner; for it was a permanent injury to the land, and had a tendency to alter the evidence of title.

III. Pleadings.

By stat. 2 & 3 W. 4. c. 71. s. 5, in all actions upon the case and other pleadings, wherein the party claiming may now by law allege his right generally, without averring the existence of such right from time immemorial, such general allegation shall still be deemed sufficient. See Tickle v. Brown, 4 Ad. & Ell. 369, and post, tit. Trespass.

Ex. gr.

By R. G. H. T. 4 W. 4. in actions on the case, the plea of not guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement, and no other defence than such denial shall be admissible under that plea: all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration. In an action on the case for a nusance to the occupation of an house by carrying on an offensive trade, the plea of not guilty will operate as a denial only that the defendant carried on the alleged trade in such a way as to be a nusance to the occupation of the house, and will not operate as a denial of the plaintiff's occupation of the house. In an action on the case, for obstructing a right of way, such plea [not guilty,] will operate as a denial of the obstruction only, and not of the plaintiff's right of way; and all matters in confession and avoidance shall be pleaded specially as in actions of assumpsit.

Under the operation of the foregoing rules, "not guilty," pleaded to a declaration in case for the wrongful diversion of water from the plaintiff's mill, puts in issue the mere fact of the diversion and not its wrongful character. But in an action2 on the case for keeping dogs, well knowing them to be accustomed to bite cattle, &c. and which bit and worried the plaintiff's cattle, it was holden, that the plea of not guilty, put in issue the scienter, that not being inducement, but an essential part, indeed the substance of the issue.

x Alston v. Scales, 9 Bingh. 3.

y Frankum v. E. of Falmouth, 2 Ad. and Ell. 452. 4 Nev. and Man. 330; after a conference with all the judges.

z Thomas v. Morgan, 2 Cr. M. and R.

496. 5 Tyr. 1085.

IV. Evidence, &c.

The plaintiff must be prepared to prove his possession of the land, house, &c. affected by the nusance, and the continuance or erection of the nusance by the defendant, as the circumstances of the case may require, and also the injury thereby sustained. Where the plaintiff complains of an injury to an easement, it will be incumbent on him (unless he can shew an express grant,) to carry his evidence of the condition of the land, &c. and the enjoyment of the right, as far back as possible, in order to raise a presumption of right by grant or prescription. This action being local in its nature, the nusance must be proved to have been committed in the county where the venue is laidb. But it is not necessary that the gravamen should be described with any local certainty. It is sufficient if the declaration point out the gravamen with certainty enough to enable the defendant to have notice of it. Notice to remove nusance left at premises is evidenced against subsequent occupier. The defendant may prove that the plaintiff gave him leave by parol to do the act which occasioned the nusance, and that it was done under that permission; for a license executed is not countermandablef (2). But it must be observed that in this case all the defendant did was on his own land. And although a parol license may be an excuse for a trespass, until such license is countermanded, yet a rights and title to have a passage for water over another's land, being a freehold interest, requires a deed to create it.

a Peake's Evid. 294. See stat. 3 & 4 W. 4. c. 71.

b Warren v. Webb, Taunt. 379. But see 3 & 4 W. 4. c. 42, s. 22, ante, p. 499.

c Mersey and Irwell Navigation v.

Douglas, 2 East, 497. See also Jefferies v. Duncombe, 11 East, 226. d Salmon v. Bensley, Ry. & M. 189. e Winter v. Brockwell, 8 East, 308. f See Liggins v. Inge, 7 Bingh. 682. g Hewlins v. Shippam, 5 B. & C. 221.

(2) Secus, while it remains executory. Per Haughton, J. Webb v. Paternoster, Poph. 151. But an authority coupled with an interest cannot be revoked. Gaussen v. Morton, 10 B. and C. 731. The license must be established by clear and satisfactory proof. Per Patteson, J. Blanchard v. Bridges, 4 Ad. and Ell. 195.

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CHAP. XXXI.

PARTNERS.

I. What is necessary to constitute a Partnership.
II. How far the Acts of one Partner are binding on his

Co-partners.

III. Of Actions by and against Partners.

IV. Evidence.

I. What is necessary to constitute a Partnership. IN order to constitute a complete partnership, as well between the parties as in respect to strangers who may deal with them, a communion of participation of profits and loss is essential. The shares of the parties must be joint, though it is not necessary that they should be equal. If the parties be jointly concerned in the purchase, they must also be jointly concerned in the future sale, otherwise they are not partners. A. for himself and his two partners (who were general merchants), B. for himself and partner (who were oil merchants), C. for himself and son, (who were also oil merchants), agreed to purchase jointly as much oil as they could procure, on a prospect that the price of that commodity would rise. A. was to be the ostensible buyer, and the others were to share in his purchase, at the same price which he might give. A. and Co. were to have a half, B. and Co. a quarter, and C. and Co. the remaining quarter. In pursuance of this agreement A. and Co. ordered a broker to buy quantities of oil. The broker accordingly bought several ship loads, and among the rest a ship load from the plaintiffs. To some of the vendors, (not plaintiffs in this action,) B. and Co.

a Coope and others v. Eyre and others, 1 H. Bl. 37.

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