tenant of the freehold, ſo that a leſſee for years is confined to his action upon the caſe[1].
2. An aſſiſe of nuſance is a writ, wherein it is ſtated that the party injured complains of ſome particular fact done, ad nocumentum liberi tenementi ſui, and therefore commanding the ſheriff to ſummon an aſſiſe, that is, a jury, and view the premiſes, and have them at the next commiſſion of aſſiſes, that juſtice may be done therein[2]: and, if the aſſiſe is found for the plaintiff, he ſhall have judgment of two things; 1. To have the nuſance abated; and 2. To recover damages[3]. Formerly an aſſiſe of nuſance only lay againſt the very wrongdoer himſelf who levied, or did, the nuſance; and did not lie againſt any perſon to whom he had aliened the tenements, whereon the nuſance was ſituated. This was the immediate reaſon for making that equitable proviſion in ſtatute Weſtm. 2. 13 Edw. I. c. 24. for granting a ſimilar writ, in caſu conſimili, where no former precedent was to be found. The ſtatute enacts, that “de caetero non recedant querentes a curia domini regis, pro eo quod tenementum transfertur de uno in alium;” and then gives the form of a new writ in this caſe: which only differs from the old one in this, that, where the aſſiſe is brought againſt the very perſon only who levied the nuſance, it is laid, “quod A. (the wrongdoer) injuſte levavit tale nocumentum;” but, where the lands are aliened to another perſon, the complaint is againſt both; “quod A. (the wrongdoer) et B. (the alienee) levaverunt[4].” For every continuation, as was before ſaid, is a freſh nuſance; and therefore the complaint is as well grounded againſt the alienee who continues it, as againſt the alienor who firſt levied it.
Before this ſtatute, the party injured, upon any alienation of the land wherein the nuſance was ſet up, was driven to his quod permittat proſternere; which is in the nature of a
