men. faid meffuages or dwelling-houses refpectively to the said street, whereby the light and air from the faid ftreet came, and flill of right ought to come into the faid meffuages and dwellinghoufes refpectively in the ground-floors thereof refpectively; nevertheless the defendants well knowing the premifes, but ma-. liciously and wrongfully contriving and intending to hurt and prejudice the plaintiff in her aforefaid eftate, of and in the aforefaid meffuages or dwelling-houfes with the appurtenances, and to render the fame of little or no value to her whilft fhe was fo feized thereof as aforefaid, (to wit) on the first day of June 1772, and on divers other days and times between that day and the day of fuing forth the original writ of the plaintiff in this behalf, at the parifh aforefaid, in the county aforefaid, wrongfully and injuriously raised and caufed to be raifed the faid ftreet The Grava called Old Gravel-lane, and the foil and pavement thereof be. fore and in the front of the faid feveral meffuages or dwellinghouses of the plaintiff, and of each of them refpectively by then and there placing and laying divers great quantities of wood, boards, timber, planks, earth, ftones, gravel and foil, in and upon the faid ftreet there, to a much greater height than the faid street or the foil and pavement thereof were before raised, that is to fay, to the heighth of fix feet more and higher than the fame ftreet, or the foil and pavement thereof before were raised, and so near and fo close to and against the said fronts of the said several meffuages or dwelling-houses, and the front of each of them respectively towards the faid ftreet, that the aforefaid doors and paffages of the faid feveral meffuages or dwellinghouses, and the doors and paffages of each of them refpectively from the ground-floor thereof refpectively unto the faid freet, and alfo the faid lights and windows of the faid feveral meffuages and dwelling-houfes refpectively, in the ground-floor thereof refpectively, through which the faid light and air before came from the faid ftreet into the faid meffuages or dwelling-houses, and each of them refpectively in the ground-floor thereof, became and were and ftill are totally blocked up and obftructed, clofed and darkened respectively, fo that the faid tenants and inhabitants of the faid meffuages and dwelling-houses refpectively could not pass through, or go out of the fame refpective doors or paffages thereof into the faid ftreet, and which they ufed to pafs and go, and ftill of right ought to pafs and go into the faid street, and alfo from thence back into the faid meffuages, and the light and air which before came into the faid meffuages or dwelling-houfes refpectively, thre the fame lights and windows or any of them into i meffuages or dwellinghouses or any of them in th Ler thereof refpectively, but were and ftill are totally of 3, hradered and prevented by the means aforefaid from to dong; by reafon whereof the plaintiff plaintiff hath been and ftill is greatly prejudiced and injured in her aforefaid eftate, of and in the aforefaid meffuages or dwelling-houses with the appurtenances and each of them respectively; and the fame meffuages or dwelling-houses are become and each of them refpectively is become thereby of little or no value to her; and the greater part of the aforefaid tenants, (to wit) the faid William Sparks, James Smith, Alexander Grieve, and John Beefwank, four of the aforefaid tenants to the faid plaintiff of her faid meffuages or dwelling-houfes refpectively, by reafon of the premifes, have refpectively quitted and left the faid four meffuages and dwelling-houses, which were in their respective poffeflions as aforefaid, and the plaintiff cannot procure any other tenants for thofe meffuages or dwelling-houfes, but the fame remain and each of them refpectively remains empty and untenanted, and the aforefaid other tenants to the plaintiff, (to wit) the faid William Tucker and John Duncan, two of the faid tenants to the plaintiff of the faid remaining two meffuages or dwelling-houses of the plaintiff, have and each of them refpectively has foreborn and refufed to pay any rent to the plaintiff for those meffuages and dwelling-houfes within their refpective poffeffions fince the committing of the faid grievances, and ftill refufe to pay any rent to her, and threaten and are going to quit and leave the poffeffion of the faid two last mentioned meffuages or dwelling-houses refpectively, by means and on account of the premifes aforefaid, (to wit) at the parifh aforefaid, in the faid county of Middlefex; and the plaintiff avers that she at the faid feveral times of committing the aforefaid grievances, and fince thofe times was and continued fole and unmarried, and ftill continues and is fole and unmarried, (to wit) at the parifh aforefaid in the county aforefaid. There are other counts in the declaration to the like effect for the fame cause of action, which the plaintiff lays to her damage of pounds, &c. The defendants pleaded the general iffue, and this caufe was tried before the Lord Chief Juftice De Grey at the fittings after Hilary term laft, when a verdict was found for the plaintiff, and 170. damages, fubject to the opinion of the court upon the following cafe, viz. the court. It appeared in evidence at the trial, that the plaintiff was Cafe ftated for owner for life of the houfes mentioned in the declaration, and the opinion of which flood in Old Gravel-lane; the fame being a lane opening immediately into one of the ftreets mentioned, and authorized to be paved in and by a certain act of parliament paffed in the 11th year of his prefent Majesty's reign, intituled" An act for paving Wapping Street in the county of Middlefex, and the several streets and paffages leading into the fame; and for removing all all encroachments and obftructions therefrom, and preventing the like for the future; and for opening a paffage from Hermitage-freet into Nightingale-lane; and for paving fuch paffage, and the caft-fide of Nightingale-lane.' That on the 26th of July 1771, two thirds and upwards of the householders and landlords or owners of houfes and tenements within Old Gravel-lane aforefaid, did in pursuance of the faid act apply by petition to nine and more of the commissioners in the faid act named and appointed at a meeting of the commiffioners for putting the faid act in execution, expreffing their defire to have the faid lane paved and cleared of all incroachments, nuifances, obftructions and annoyances; whereupon the faid commiffioners, at the faid meeting, being nine or more in number, did make a certain order whereby it was ordered that the prayer of the faid petition be granted, and that the feveral powers vefted in thefe commiffioners by the faid act in confequence of the faid petition be carried into execution at their request. In confequence of the above petition and order, the commiffioners contracted with the defendants to pave Old Gravel-lane, who accordingly proceeded to pave the fame; and did, pursuant to the orders of the faid commiffioners, raife the footway contiguous to the faid houfes to the height of fix feet but in a regular defcent, and compleatly finished the faid pavement by the fourth day of July 1772, and by fo raifing the footway in manner aforefaid, obftructed the doors and windows in the ground-floors of the plaintiff's houfes in the declaration mentioned, and occafioned the feveral injuries to the plaintiff complained of in the declaration. Before the bringing of the prefent action the plaintiff did, within fix months after the cause of complaint, appeal to the juftices of the peace at a General Quarter Seffions held for the county of Middlefex, firft giving twenty-one days' notice in writing of her intention to bring fuch appeal, and of the matter thereof to the clerk of the commiffioners, and did enter into fuch recognizance in that behalf as is directed by the faid act of parliament; and upon the hearing of fuch appeal, the faid court of Quarter Seffions difmiffed fuch appeal, apprehending and declaring that that court had no jurisdiction in the matter. That before the bringing of the prefent action the clerk of the commiffioners was requested by the attorney for the plaintiff, to give him a copy of the order figned by the commiffioners under which the prefent defendants acted, or the names of fuch com commiffioners who figned fuch order, but which request the faid clerk did not comply with, but refufed fo to do; whereupon the prefent action was brought after twenty days previous notice in writing to the clerk of the commiffioners, and also to the defendants. In order to prove the action to be commenced within the time limited by the aft, a capias ad refpondendum (iffued out of this court) was produced and read in evidence, and which appeared to have iffued on the 15th day of December 1772, and was returnable the 20th day of January last, and was fued out with intent to declare in the prefent action upon the appearance of the defendants thereto, and upon fuch appearance did declare against them as above fet forth. Whereupon a verdict was found for the plaintiff, fubje&t to the opinion of the court upon the two following queftions: Q. Whether the above action will lie against the defendants under the circumftances of the cafe? 2d Q. Whether the capias ad refpondendum ought to have been read in evidence to prove the time of the commencement of the fuit? Serjeant Davy for the plaintiff was beginning to argue, when the court ftopped him and faid the defendant's counfel ought to begin, and peak firft as to the latter question; and then to the firft. Serjeant Walker for the defendant-I contend that the capias ad refpondendum ought not to have been read in evidence to prove the time of the commencement of the fuit, because that writ is not the commencement of an action in this court; the plaintiff ought to have produced and fhewn in evidence to the jury her original writ fued out within the time limited by this act of parliament; for fhe alleges in her declaration that the defendants on the first day of June, and on divers days and times between that day and the day of fuing forth her original writ, did the damage and injury fhe complains of;-fo, where the ftatute of limitations is pleaded to an affumpfit in this court, and the plaintiff replies by fhewing that a capias ad refpondendum was fued out within fix years next after the cause of action accrued, it will not take it out of the statute, Gould Juftice-If the capias ad refpondendum be fued out within fix months [as it appears to be], the original must be presumed to be fued out within fix months, for it immediately precedes the capias. "Vol. III. H H Blackfone 2 Burro. 950. to 969. Blackftone Juftice-The latitat is the commencement of the action in the King's Bench, and yet it fuppofes a bill of Middlefex to have iffued before; I think the capias ad refpondendum was mencement of very rightly admitted to be read in evidence to fhew the coma fuit in C. P. mencement of the fuit. true com is good evidence of an original.] Serjeant Walker-As the court feem to be of opinion that the capias was properly admiffible to be read to fhew the commencement of the fuit, I fhall go on to the other queftion, and endeavour to fhew that this action doth not lie against the defendants under the circumftances of this cafe. By a claufe in the act of parliament mentioned in the case for paving Wapping Street, 3c. fol. 550, 551. the commiffioners are authorized and impowered from time to time to caufe, order and direct the faid ftreet, &c. to be paved, repaired funk or altered, in fuch manner as they fhall think fit.-The defendants have done nothing but what the commiffioners ordered. The commiffioners have power to fink or alter the pavement as they think fit; they have power to alter; then they have power to raife the pavement: if to raise it an inch, they may lawfully raife it a foot, or fix feet, as hath been done in the present cafe; for the legiflature intended that private property should give way to the publich good; and therefore under the circumitances of the cafe this action doth not lie. Again; the act of parliament hath provided [fol. 590.] “That if any perfon fhall think himself or herself aggrieved by any thing done in pursuance of the act, fuch perfon may appeal to the Quarter Seffions within fix calendar months after cause of fuch complaint fhall have arifen, &c. and the juftices fhall hear and finally determine the caufe and matter of fuch appeal in a fummary way, and award fuch cofts to the parties appealing or appealed against as they the faid juftices fhall think proper; and the determination of fuch Quarter Seffions fhall be final, binding, and conclufive to all intents and purposes." The legislature faw that fome injuries must be done, and therefore gave this power to the juftices at the Quarter Seffions, whofe determination is to be final; the party aggrieved muft apply to the Quar ter Seffions for redress, and has no right to bring this action. Blackstone Juftice-It appears by the ftate of the cafe that the plaintiff did, within fix months after the cause of complaint, properly appeal to the Quarter Seffions, and upon hearing the appeal the fame was difmiffed, the juftices apprehending that that court had no jurifdiction in the matter. Serjeant |