And whereas, within the time aforesaid, and while the plaintiff was owner of the last mentioned vessel, and while the said E was master thereof, in the service of the plaintiff, viz. on &c., the said E, as master of the same vessel, received from the said M, by order of the plaintiff, at &c. aforesaid, other quarters of malt, of the value of $—, to be carried and conveyed by the said E, in the last mentioned vessel, to &c. aforesaid, by water, and to be there delivered to the said A for the plaintiff. And although, &c. [as in the preceding counts, verbatim, to the conclusion.]

NOTE. There was another count of trover for sixteen quarters of malt; and it was moved in arrest of judgment, and objected, that the two first counts were in the nature of an action on the custom of the realm, which is founded in contract, and cannot therefore be joined with trover which is a tort; and that this action ought to have been laid upon a promise and undertaking; and not being so laid was ill. But the court overruled both objections, and declared the counts all well joined. Dickson v. Clifton, 2 Wils. 319.

How far the owners of a vessel are liable for the acts and on the contracts of the master, see Law Summary, p. 267, (2d edition,) and the cases and authorities there collected.

Against owners for embezzlement by master and crew.

For that the plaintiff, at &c., on &c., shipped on board the schooner of said E, called &c., then bound on a voyage in the said E's service, to &c., a quantity of silver and gold, to wit, &c., all of the value of $-, with the said A, the said E's servant, and commander of his said vessel for said voyage, and for whose conduct in said service, the said E is answerable; to be transported in said vessel, on the plaintiff's account and risk, to &c., there to be delivered to the plaintiff, his order or assigns, he or they paying freight therefor, at the rate of $-, per cent., with primage and average accustomed; and the said A, in his said capacity, then and there signed a bill of lading, according to the custom of merchants, thereby engaging for the delivery of said gold and silver, in manner aforesaid, in consideration aforesaid whereby the said E, according to the custom of merchants, then and there became obliged, that the said gold and silver should be safely kept, the dangers of the sea only excepted, and transported, and delivered as aforesaid, and then and there promised the plaintiff accordingly. And the plaintiff in fact says, that the said A, master of the said E's vessel, in said E's service, as aforesaid, arrived safe at &c., aforesaid, with said gold and silver, and that the said gold and silver

;

was not safely kept, but by the said E's master aforesaid, and by the crew of said E's vessel, for whom, in such respects, he is answerable, was there, on board said vessel, on &c., converted to their own use and embezzled, and was never delivered to the said plaintiff, nor to his order, nor to his assigns, though often requested thereto, and though the plaintiff was ever ready to pay the freight, primage and average aforesaid; by means whereof the said E, according to the usage and custom of merchants, became obliged to pay the plaintiff his damages, thereby occasioned, which the plaintiff avers, amount to $-, on demand; yet though requested, &c. PRATT.

Against an innholder for suffering plaintiff's horse to stray away, &c.

For that whereas, according to the law and custom of the land, the innkeepers that keep common inns to lodge travelers therein, who abide in the same, are bound to keep their goods and chattels, being within those inns, day and night without diminution, pilfering, or loss, so that no damage or loss may happen to any such travelers, or such guests, for want of due care in such innkeepers or their servants; and the said plaintiff, on &c., at &c., being lodged in the inn of the said E, had a certain gelding, of the value of $-, within that inn, and delivered the same to the said E, then and there to be safely kept; nevertheless, the said E, knowing the said gelding to be within his inn, the same day and place, did so negligently keep said gelding, that the said gelding, for want of safe keeping thereof, by the said E, and his servants, went forth and wandered from the said inn; whereby the said plaintiff not only lost the use and profit of the said gelding in going on his said journey, in doing necessary and important business, but the same thereby remained undone; and the said plaintiff expended and laid out divers sums of money, not only by reason of the want of his said horse, but also the said plaintiff always, from the said day &c., lost the use and benefit of his said gelding. And the said E, hath not delivered to the said plaintiff, his said gelding, although the said E, on &c., at &c., was thereto requested, but hitherto hath refused, and still doth refuse so to do, or make him any satisfaction for the same, &c. Mod. Ent. 144.

With regard to the liabilities of innholders, see extract on that subject in the Law Summary, p. 373.

Against carrier for not delivering goods, &c.

For that the said T, on &c., and long before, was, and ever since hath been, and now is a common carrier of goods and chattels, and during all that time, hath been used to carry for gain and hire, the goods and chattels of all persons whatever, requesting thereto, from A to B, and thence back again to A. And whereas, by the laws and custom of the land, every common carrier, who receives any goods. and chattels of any person, for gain, hire and profit, to carry the same, is bound to carry the same without diminishing or losing any part thereof, so that no damage whatever may happen thereto, by default of such common carrier, or his servant; and whereas the said plaintiff, on &c., at &c., was possessed of &c., as of his proper goods and chattels; and the said plaintiff, being so possessed thereof, on the same day, at &c., delivered to said T, said goods, to carry the same safely and securely, from A aforesaid, to B aforesaid, and there to be delivered to the said plaintiff; and the said T then and there had and received the said goods, to be carried and delivered in manner above set forth; yet the said T hath not, at any time since the said day of delivered said goods to him, the said plaintiff, as he ought to have done; but instead thereof, the said goods, afterwards, on &c., at &c., were wholly lost, for want of due care and preservation of the same by him, the said T; to the damage, &c. Mod. Ent. 145.

NOTE 1. Judgment was arrested in this case, after a verdict; because trover was joined in the same declaration; whereas a contract and tort could not be joined together. 1 Salk. 10. And see 1 Sid. 244; but

quare of this determination, for contract. 2 Wils. 319.

NOTE 2. 4 T. R. 264. If one be entrusted with my goods, and put them into a third person's hands contrary to orders, I may declare against him in trover and conversion; but otherwise, if he misdeliver them merely by mistake.

If the consignor of goods deliver them to a particular carrier, by order of consignee, and they be afterwards lost, the consignor cannot maintain an action against the carrier for the loss, although he paid for the booking of the goods; for the delivery of the goods to such a carrier, is a delivery to the consignee, who alone may bring the action. And the court declared, that the question, in whom the legal right was vested, governed all cases of this kind; and that the former cases, 5 Bur. 2680, 1 T. R. 650, went upon the special agreement between the carrier and the consignor. Davis v. Peck, 8 T. R. 330. (MSS.)

For the liability of common carriers. See Law Summary, p. 357.

2. Disturbance, Nuisance, &c.

This action lies for a disturbance in the use of any right, privilege, or interest, which a man has a right to enjoy; thus it may be maintained for any act, which prevents a man from using a right of common, a right of way, a seat in a church, &c. in as advantageous a manner, as he otherwise might, and as he is entitled to do. It lies for inclosing a parcel of common land; or for surcharging it; or for digging or ploughing up the soil, &c. So it may be maintained for stopping a way, or ploughing it up; or damaging it with teams, &c. Lut. 111. 1 Vent.

275.

So this action may be maintained for taking toll of one, who is entitled to pass toll free. 1 Salk. 12.

So it lies for interrupting or diverting a watercourse; stopping a drain, stopping ancient lights, &c. 2 Wils. 174; 7 Mass. R. 313; 13 Mass.

R. 507.

So it lies against the officers, presiding at elections, for unjustly refusing the vote of a qualified voter, and even although they exercise their judgment honestly.

It lies also for a nuisance; such as erecting works injurious to the health; or which spoil the grass or corn; or hurt the cattle of a neighbor. 1 Bur. 260.

It lies also for not repairing fences; or not keeping ditches in order; so that their contents overflow in consequence. Cro. Eliz. 191.

This action for a nuisance is local. Warren v. Webb, 1 Taunt. 379.

DECLARATIONS IN CASE for disturBANCE, NUISANCE, &c.

For darkening ancient lights, by erecting a building near them. For that whereas the plaintiff, on &c., and continually from thence hitherto, was possessed, and yet is possessed, of and in an ancient messuage, situate &c., for a term of divers years, then and yet to come and unexpired, and of twentyone windows, in and upon part of the south side, and of eight windows in and upon part of the east side of the said messuage, in and through which said windows, light into said messuage, on the said day of &c., was let, and was accustomed to be let, and then and yet ought to be let, for the enlightening of his said house; yet the said T and E [defendants,] not ignorant of the premises, but maliciously contriving and intending to deprive the plaintiff of the use and benefit of the said windows, afterwards, viz. on the said day &c., at &c. aforesaid, a certain edifice so near the said windows of the said house of the plaintiff, built and erected, and from thence until the day of the purchase of this writ, continued; and thereby the said windows were stopped up and darkened; whereby the plaintiff was,

during all that time, deprived of, and lost the use and benefit of the said windows; &c. See Lilly Ent. 81.

NOTE. In this action, Salk. 460, 714, a motion was made, in arrest of judgment, that the messuage was not alleged to be an ancient one; but being after verdict, the court disallowed it, and seemed inclined to think the declaration would have been good on demurrer; and it was so ruled. 1 Vent. 237, 239. (MSS.)

If a man builds a new house and sells it, and afterwards sells the land adjoining, to another, if such purchaser erects a building so as to darken the lights of the first house, this action may be maintained against him. Ray. 87; 1 Lev. 122.

Under the Revised Statutes of Massachusetts, ch. 60, sec. 27, no right or privilege of way, air or light, can be acquired by any use or enjoyment under twenty years.

By sec. 28, the acquiring of such easement may be prevented by giv. ing written notice in the manner therein directed, and recording the same in the registry of deeds, for the county where the land lies, within three months after serving the notice. By the same section, the service of such notice, shall be deemed such an interruption to the use, &c. as shall prevent acquiring a right thereto by any length of time whatever afterwards. The provision of sec. 27, seems to be a virtual enactment of the opinion of Wilmot, Justice, "that upon evidence of an adverse enjoyment of lights for 20 years or upwards, unexplained, a jury might be directed to presume a right by grant or otherwise," &c. See Dane's Abr. ch. 74, art. 10, sec. 3, where this learned Judge's opinion is treated without any superfluous ceremony.

For erecting a privy near plaintiff's dwellinghouse, &c., so that the tenant insisted on an abatement of the rent, and finally left the house.

For that whereas the plaintiff, on &c., was, and from thence hitherto hath been, seized in his demesne as of fe, of a certain dwellinghouse, with the appurtenances, situate in &c., then in the occupation of one E F, as tenant thereof, in the right of the plaintiff, the said D, well knowing the premises, and maliciously intending to injure the plaintiff in his estate of inheritance in the said dwellinghouse &c., on &c., at &c., wrongfully and unjustly, erected and built a certain privy near to the wall of the said dwellinghouse, and continued the said privy, for a long time, viz. from thence hitherto, and during all that time, permitted the same to be full of ordure, excrement, and filth, whereby the said ordure, &c., on &c., and on divers other days and times, between that day and the day of the purchase of this writ, there soaked and penetrated through the wall of the said dwellinghouse, and thereby greatly mouldered, rotted and spoiled the said wall; and by reason thereof, and by the nasty, noisome, foul, and stinking stench, vapors, and smells, arising from the said privy, and from the same, penetrating and as