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LANDS.

damages only

was involun

trees on the land of any other person, without the leave of TRESPASS ON the owner thereof, or on the land or commons of any city or town, without having any right or privilege in such commons, and without license from the corporation or proper officers of such city or town, shall forfeit and pay to the owner of such land, or to such city or town, treble the amount of the damages which shall be assessed therefor in an action of tresspass, by a jury, or by a justice of the peace, in cases provided by law."36 But that "if upon the trial of any such action, it But single shall appear that the trespass was casual and involuntary, or if trespass that the defendant had probable cause to believe that the land tary, &c. on which such trespass was committed was his own, or that such wood, trees or timber, were taken for the purpose of or for repairmaking or repairing any public road or bridge, by the authority of a commissioner or overseer of highways, judgment shall be given to recover only the single damages assessed by the jury." And that "nothing in either of the preceding sections shall authorise any person to recover more than the just value of any timber taken for the making or repairing any public roads or bridges."38

ing roads, &c

seisin.

It is also provided, that "if any person be disseised, ejected, Forcible disor put out of any lands or tenements, in a forcible manner, or being put out, be afterwards holden and kept out by force, or with strong hand, he shall be entitled to maintain an action of trespass, and shall recover therein treble the damages assessed by the jury or by a justice of the peace, in cases provided by law."189

The action of trespass quare clausum fregit, is similar in its form and proceedings to the action of trespass on personal property, or de bonis asportatis. The practice in this action therefore, being the same as in personal actions for the recovery of a debt or damages, will not be separately treated of.

36 2 R. St. 338. s. 1.
37 Ib. s. 2.
38 Ib. s.3.

30 2 R. St. 338. P. 3. Ch. 5. T. 6. s. 4.

NUISANCE

WRIT OF NUISANCE.

At common

law

disused.

Statutory provisions.

At common law there were two actions for the abatement of a nuisance, in both of which, damages were also recovered, viz: the assize of nuisance and the quod permittat prosteruere, which was in the nature of a writ of right. The former of these could only be brought against him who levied or did the nuisance, and therefore when the nuisance had been transferred to another, by an alienation of the premises on which it was situated, the party injured was driven to his quod permittat, until this inconvenience was remedied by the statute Westm. 2nd.40 Both these actions fell into disuse, and gave place to the action on the case, in which however, no judgment could be had to abate the nuisance, but only to recover damages.

The revised statutes declare that "the common law remedy by writ of nuisance is retained as heretofore accustomed, subject to the provisions herein contained."'101 That "in cases

of nuisance, the plaintiff shall not go without remedy because the land is transferred to another; but in such case the party by whom the nuisance was erected, and he to whom it was transferred, shall both be named as defendants in the writ."41 It is further provided that "the judgment upon a writ of nuisance, in case the plaintiff shall prevail, shall be as heretofore accustomed, that the nuisance be removed, and that the plaintiff recover the damages occasioned thereby."42 The revised statutes have also made some important alterations in the proceedings in this action, as will be seen hereafter.

40 3 Bl. Com. 221.
101 2 R. St. 332. s. 1.
41 Ib. s. 2.

42 2 R. St. 333. P. 3. Ch. 5. T. 4. s. 7. See also 1 Rev. Laws

80.

PARTITION.

PARTITION.

43

law, obsolete.

The common law provided coparceners with the means of At common dividing their estate equally among themselves by the writ of partition, and an early English statute gave the same writ to joint tenants and tenants in common. This common law writ has long been obsolete, having been superseded in practice by more convenient and equitable remedies provided by statute, and by a bill for a partition, which the court of chanhas always entertained as a part of its equity jurisdiction, although it may now perhaps be considered as belonging to the statutory jurisdicuon of that court. The statutory provi- Statutory sions for the partition of lands, have been altered and improved ments. at different periods, but never so materially and extensively as by the late revision.

cery

improve

Partition, as it now exists, has so many of the incidents of When it lies. actions at law, that although it is commenced by petition, it may not improperly be denominated an action. The cases in which it lies, and the relief afforded by it, are expressed in the following section of the statute: "When several persons shall hold and be in possession of any lands, tenements or hereditaments, as joint tenants, or as tenants in common, in which one or more of them shall have estates of inheritance, or for life or lives, or for years, any one or more of such persons being of full age, may apply by petition to the supreme court, or to the court of common pleas of the county, or the mayor's court of the city, where the premises are situated for a division and partition of such premises, according to the respective rights of the parties interested therein; and for a sale of such premises, if it shall appear that a partition thereof can not be made without great prejudice to the owners.'

9744

13 Com. Dig. Parcener C. 6.

44 2 R. St. 317. P. 3. Ch. 5. T. 3. s. 1.

VOL. I.

7

SECTION III.

OF SCIRE FACIAS.

GENERAL DIVISIONS.

Both of a public and private na

ture.

Its uses as a private re

medy.

Limitation of, on judg

ments.

It is an action.

The writ of scire facias, which is an action of record, relates both to real and personal property, and is of either a private or public nature.

As a private remedy, it is incidental to other actions, being founded upon matters of record in such actions, and lies, 1. To have execution, or for some other purpose, upon judgments as between the original parties: 2. To have execution against bail who have become liable for the debt of their principal: and, 3. Upon judgments on the introduction of new parties; and this may be, either where a party dies after interlocutory judgment, to have an assessment of damages and judgment for or against his executors or administrators, or to have execution of a final judgment, where new parties have been introduced by marriage, death, or some other event.

A scire facias to revive any judgment or recovery docketed anterior to the first day of January, 1830, must be brought within ten years thereafter; and when brought to revive any such judgment or recovery docketed after that day, must be brought within ten years after the time when it is docketed.45

Scire facias is considered as an action, and the reason assigned is, that the defendant may plead to it.46 Therefore a release of all actions is a good bar to a scire facias; and for the same reason there must be a new warrant of attorney, to authorise the appearance of the plaintiff's attorney, and there

45 2 R. St. 577. s. 3.

46 Co Lit. 290. b. 291. a. 2 Wils. Rep. 251. W. Bl. Rep. 1227. 2 Term Rep. 46. 1 Term Rep. 267. 268.

47 Co. Lit. 290. b. Comb. Rep. 455. Skin. Rep. 682. Ld. Raym. Rep. 1048. 2 Wils. Rep. 251.

DIVISIONS.

is no occasion for a rule to change the attorney in the former GENERAL suit.48 But it has been held that a scire facias brought on the death of a party after interlocutory judgment to recover the damages which had been assessed on a writ of inquiry, was not a new action, but a continuation of the old one;49 and that, as the attorney in the original action had stipulated that no writ of error should be brought, a writ of error could not be brought upon the scire facias.50

public reme

In its character of a public remedy, scire facias lies in be- Its uses as a half of the people of the state to vacate letters patent obtained dy. by means of fraud or mistake, or which have become forfeited. It also lies for the purpose of annulling an act of incorporation passed upon a fraudulent suggestion or concealment of some material fact.

I. OF SCIRE FACIAS, AS BETWEEN THE ORIGINAL PARTIES

TO A JUDGMENT.

original par

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judgment.

which it lies

ment, &c.

⚫ Scire facias lies upon a judgment as between the original Between parties: 1. To have execution where more than two years have elapsed since the judgment record was filed: 2. Where the Instances in debt or damages recovered, are to be levied out of future on a judgeffects: 3. Where judgment has been entered, upon a bond or for a penal sum, to assess and collect the damages sustained by subsequent breaches of the condition of such bond, or by the non-performance of covenant secured by such penal sum : 4. By a tenant, where a judgment has been recovered against him, which has been reversed on error by the reversioner or remainder-man, and fraud established in its recovery, to

48 6 John. Rep. 106. Ld. Raym. Rep. 1252. 1 Taunt. Rep. 46. Salk. Rep. 89. pl. 11. 7 Term. Rep. 333.

49

1 Term. Rep. 388.

50 And see 1 Peters, C. C. Rep. 446, that scire facias is a continuation of the original suit, so that the parties to the scire facias need not be citizens of different states in the circuit court of the U. S.

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