Private nuisances.

Section 2. Private nuisances. The reason why the law allows the abatement of a nuisance, private or public, by any individual annoyed by it, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice. To enumerate the instances in which a party may abate a private nuisance, is not intended, but merely to state some of the general rules recognized by law, and to be observed by the parties resorting to this mode of relief.

Where a nuisance was occasioned by the tortious misfeasance or malfeasance of another, the party thereby injured may, in general, abate the nuisance immediately, and without any previous notice or request; but if the nuisance be merely continued by a party who did not erect it, or when it consists in the omission of a party, he ought to be requested to remove it before the party injured can himself remove the injury; for nuisances, by an act of commission, are committed in defiance of those whom such nuisances injure, and the injured party may abate them without notice to the person who committed them. Jones v. Williams, 11 M. & W. 176. But the law does not sanction the abatement by an individual of nuisances from omission, except that of cutting branches of trees which overhang a public road or the private property of the person who cuts them; or removing obstructions from a public highway, where special injury is done to the party so abating it. Northrop v. Burrows, 10 Abb. 365. See, also, Rogers v. Rogers, 14 Wend. 131; Griffith v. McCullum, 46 Barb. 561; Howard v. Robbins, 1 Lans. 63. In removing a private nuisance, care should be taken not to abate more or to go further than to restore the party injured to the enjoyment of his right as it existed before the nuisance was created; for, if a party goes beyond this, and unnecessarily injures or destroys the property constituting such nuisance, he will be guilty of an illegal act. Ib. See 1 Wait's Law & Prac. 748 to 754.

A house which is wrongfully built upon a common, and which obstructs the right of common, may, after notice and request by a commoner to remove from the house, be pulled down, although the builder and his family were actually inhabiting and present in the house. Davies v. Williams, 16 Q. B. 546. See Perry v. Fitzhowe, 8 id. 757. So of a person who enters upon the lands

of another, and unlawfully builds a house. Burling v. Read, 11 Q. B. 904; Davison v. Wilson, id. 890.

Section 3. Public nuisances. Private citizens are permitted, in many cases, to abate public nuisances without the interposition of any legal authority. It is clear that any one may, in some cases, justify the removal of a common nuisance, whether on land or on water. If a gate or wall be erected across a public highway, so as to constitute a common nuisance, then any person passing along such highway may tear it down or destroy it if necessary to restore the highway to its proper condition for his passage along it. Northrup v. Burrows, 10 Abb. 365. But he cannot lawfully do any needless injury to such property, even though it be in a public highway, for if he wantonly or unnecessarily destroys it he will be liable to an action. Rogers v. Rogers, 14 Wend. 131.

A fence so built as to encroach upon a public highway is a public nuisance, and yet, if there is sufficient room for persons to travel along such highway, it will be an unlawful act for a traveler or other person to remove or destroy such fence. Grif fith v. McCullum, 46 Barb. 561; Harrower v. Ritson, 37 id. 301; Peckham v. Henderson, 27 id. 207; Howard v. Robbins, 1 Lans. 63. It is not every nuisance that may be removed by a private person, for although a fence is so far an encroachment upon a public highway as to constitute a public nuisance, yet an individual cannot lawfully remove it unless it prevents his passage along such highway. Ib. Dimes v. Petley, 15 Q. B. 276; Bridge v. Grand Junction Railway Co., 3 M. & W. 244; Davies v. Mann, 10 id. 548; Mayor of Colchester v. Brooke, 7 Q. B. 339; Bateman v. Bluck, 18 id. 870; Roberts v. Rose, 3 H. & C. 162; L. R. 1 Ex. 82.

ARTICLE VIII.

DISTRESS AND SEIZURE OF CATTLE.

Section 1. In general. The taking of cattle or chattels, as a distress, whether damage feasant or for rent, where that is permitted, or for other claims, is also one of those remedies permitted by law. See 1 Wait's Law and Prac. 788 to 791.

Section 2. Damage feasant. When the animals of one person unlawfully go upon the lands of another person and there do

Damage feasant.

damage, as by treading down the grass, grain or other productions of the earth, the owner of such land may lawfully seize such animals instead of bringing an action for the trespass. This remedy exists at the common law, but it is frequently modified or regulated by statutes. See 2 R. S. 517 to 521. Some of the rules to be observed in pursuing this remedy will be briefly noticed. If a party elects to distrain cattle or chattels damage feasant, he must follow strictly the course pointed out by the statute.

No one ought to distrain cattle damage feasant unless he has the legal title or the right to the possession of the land upon which they are found.

The remedy by distress, given by the statute, is cumulative, and the distrainer may, if he pleases, pursue the common-law remedy by action of trespass. Before making a distress, the party should consider whether the trespass was not justifiable by reason of his own omission to keep his fences in repair. The cattle must be taken while actually upon the land and in the very act of doing damage, and not after it is over, or at least not after they have escaped from the land, even though the owner of the land was pursuing them, and the owner of the cattle drove them off for the purpose of preventing the distress.

A horse cannot be distrained if there be a rider upon him at the time. Storey v. Robinson, 6 Term. R. 138. Nor can a horse and cart be so taken, if, at the time of distraining them, they are in the actual possession, care and use of the party driving them. Field v. Adames, 12 Ad. & E. 649. The rule is otherwise as to a dog. Bunch v. Kennington, 1 Ad. & E. N. S. 679.

The cattle taken cannot legally be impounded after an adequate tender of amends made before impounding.

Again, the cattle distrained must not be beaten or wounded, or worked, or used. For, doing either of these acts would render the party distraining liable to an action.

The manner of disposing of a distress is pointed out in this State by statute. 2 R. S. 517 to 521.

The statutes relating to cattle running in public highways will be found, Laws 1862, ch. 459; Laws 1867, ch. 814; Laws 1869, ch. 424.

For some of the decisions upon the question, see Rockwell v. Nearing, 35 N. Y. (8 Tiff.) 302; Campbell v. Evans, 54 Barb. 566; Fox v. Dunckle, 55 id. 431; 38 How. 136; Leavitt v. Thomp

Retainer.

son, 56 Barb. 542; McConnell v. Van Aerman, id. 534; Squares v. Campbell, 41 How. 193.

ARTICLE IX.

RETAINER, REMITTER AND LIEN.

Section 1. Retainer. Retainer is the act of withholding what a party has in his hands by virtue of some right. An executor or administrator has, in some cases, a right to retain a debt or sum due to him from the estate, or the testator or intestate. A sole executor may retain in those cases where, if the debt had been due to a stranger, the latter might have sued and recovered the sum of such executor, whether the debt were due to himself or due to him in right of another, or to another in trust for him. If there are several executors, and one of them has a claim against the estate of the deceased, he may retain it with or without the consent of his co-executors; and if there are several creditors among the executors, each of the same degree, and the estate is insolvent, they may retain pro rata.

The right of retainer may be exercised where the deceased was bound alone, where he was bound with others, and where the executor of the obligee is also executor of the obligor.

As there is quite a diversity in the practice of different States and countries in relation to the priority of claims, there will be no attempt at an enumeration of them. Funeral expenses and physicians' bills usually have a preference over other claims.

Where the nature of the claim is arbitrary and unascertained, as in the case of a claim for damages for a tort, there cannot be a retainer; therefore, where the claim is for damages for the breach of a pecuniary contract, there may be a retainer, as there is a certain measure of damages. An executor is not bound to plead the statute of limitations against a just debt, and therefore that statute does not operate against his claim.

In case the estate is insolvent, the executor's right to retain is limited by the rights of other creditors who are equally entitled with himself to payment. At common law a creditor obtained an advantage by obtaining the first judgment against an executor and, as an executor could not sue, he might retain his whole claim in preference to other creditors. This rule is abrogated in some of the States, and is in force in others.

Remitter-Lien.

Section 2. Remitter. This takes place when he who has the true property in lands is out of possession and has no right to enter without recovering possession in an action, but afterward has the freehold cast upon him by some subsequent, though of course, defective title. In this case he is remitted, or put back, by operation of law, to his ancient or more certain title. This right of entry which he has gained by a bad title is, ipso facto, annexed to his own inherent good one, and the defeasible estate is utterly defeated and annulled by the instantaneous act of law without his participation or consent. The reason assigned for this rule is, that, being so remitted, the owner has no means of asserting his title, because, being in possession, he cannot sue himself, and, to prevent his loss, the law places him in the same situation as if he had established his right by action or suit. But, to enable the owner of the land to take advantage of this principle, the title must be cast upon him by the law, as by descent; for, if he undertakes to buy the subsequent estate or right of possession, he is considered as having waived his prior right, and therefore he is not remitted. Whenever this right of remitter exists, it takes place regardless of the will or intention of the party benefited. He is remitted nolens volens. But there is no remitter to a right which is extinguished, or for which the party has no right of action, as in the case of a claim barred by the statute of limitations. See Doe d. Daniell v. Woodroffe,

10 M. & W. 608; 15 id. 768; 2 H. L. Cas. 811.

Section 3. Lien. A lien, when considered as a remedy in the hands of the party, may be defined as the right of detaining the property of another until some claim is satisfied. There may be liens which arise by operation of law, or which are created by the express agreement of the parties. A right to retain property in respect of money or labor expended on some particular property is a particular lien. A general lien is one which binds all the property of the debtor which may happen to be in the hands of his creditor. To specify all the cases in which a party has a right to retain property by virtue of a lien, is foreign to the design of this work; but the general rule is, that a party, who is in possession of property by virtue of a valid lien, may retain the possession until his claim is paid. This claim may be lost or waived by any act of the parties by which it may be surrendered or become inapplicable.

In general, possession is not only essential to the creation, but