
    [Philadelphia,
    March 27, 1828.]
    BARNET against IHRIE.
    in error.
    Assize of nuisance is ap existing remedy in Pennsylvania, not altered in essential-points, though in matters of form it ought to be adapted to modern' practice. . - .
    In such action, the recognitors are not to be summoned and sworn according to the act directing the mode of returning and selecting jurors.
    Nor are the proceedings irregular because there has been a defect in the plead- • mg, since the whole casé may be put before the recognitors at large, without regard to pleading, s ■
    It is not error that no judgment was entered below' quod capiatur assisa. Exceptions purely technical not regarded in .this action.
    Writ of error,to the Court of Common Pleas of Northampton county,,in which judgment was entered for the defendant in error and plaintiff below, Peter Ihrie, in an assize of nuisance, brought by him to August term, 1825, against William. Barnet, the plaintiff in error and defendant below.
    The prxeipe directed the prothonotary to.issue a writ,
    For that whereas the said Peter Ihrie the elder, complains'that William Barnet the elder, unjustly and without judgment has erected, levied, and raised a .certain .wall and dam, thereby obstructing a certain mill site and a certain watercourse, called the Bushhill creek,, and has obstructed a certain other watercourse in the borough of Easton, in the said county, to the nuisance of the freehold of him the said Peter Ihrie the elder, situate in the same borough and county within thirty years last past: Wherefore we command our sheriff that if the said Peter Ihrie the elder make him secure of prosecuting his claim, that he shall cause twelve free and lawful men of the neighbourhood to view the said, mill site, watercourse, and' tenements; and the nuisance thereof done, and the names to be, iropannelled, and summon them by good summoners, that they be and .appear before the judges at Easton, at the county Court of Common Pleas, there to be held for the county aforesaid, on the third Monday of August next, together with the parties to recognise, &c. &e.; and put by sureties and safe pledges the said William Barnet the.elder, if he be found in his bailiwick, so that he be and appear then and there before our judges aforesaid, then and there to hear and recognise, &c.; and that he have then and there the names of those pledges, &c. &c.
    
      John Doe and Richard Roe, Pledges,
    
      John Denn and Richard Fenn, Summoners.
    
      Peter Ihrie, jr., attorney for tlie plaintiff.
    To Matthias Gress, Esq., Prothonotary of the Court of Com-' mon Pleas.
    
      
      Northampton county, ss.
    The Commonwealth of Pennsylvania, to the Sheriff of Northampton, county, '
    Greeting:—
    Whereas Peter Ihrie the elder, hath complained to us that William, Barnet the' elder,, unjustly and without judgment hath erected, levied, and raised a certain wall and dam, thereby obstructing a certain mill site and a certain watercourse, called the Bush-kill creek, and hath obstructed a certain other watercourse in the borough of Easton, in the said county, to the nuisance of the freehold of him the said Peter Ihrie the elder, situate-in the same borough and county within thirty years. And, therefore, we command you, that if the said Petei" Ihrie the ejder shall make you secure of prosecuting his claim, then, you shall cause twelve free and lawful men of the neighbourhood to view the said mill site', watercourse, and tenements, and the nuisance thereof done, and the names to be impannelled, and summon them by good summoners, that they be and appear before the judges of our Court of Common Pleas at Easton, at our county court, there to .be held the third .Monday of August next, together with the parties, ready to recognise, &c.,- and put by sureties and safe pledges, the said William Barnet the elder, -if. he be found in your bailiwick, so that he be and appear then and' there before our, judges aforesaid, ready to hear and recognise, &c., and have you then and theré'the names of those pledges and- this writ. ’
    Witness the honourable Robert Porter, Esq., president of our said court at Easton, the 30th day of April, in the year of our Lord one thousand eight hundred and twenty-six. .-
    
      Matthias Gress, Prothonotary.
    
      Endorsement: — August Term, ÍS25.: — No.-28.
    
      Peter Ihrie the elder . v. William Barnet the elder. • Assize of Nuisance.
    
      {Ihrie.)
    
    
      John Doe and Richard Roe, Pledges,
    
      John Denn and Richard Fenn, Summoners.
    Return of the sheriff to the writ':—
    Served the within writ upop the within’ named William Bar-net the'elder. The residue of this writ to me directed appears in a certain pannel hereto annexed. So answers,
    
      J. Carey, jr., Sheriff.
    
      The pannel annexed:—
    
      Peter Ihrie the elder v. William Harriet the elder. r In the Common Pleas of North- \ ampton county. Assize of J Nuisance, of August Term, \ ' T 825, — No. 28.
    Sir,
    You are hereby informed that the recognitors in the’ assize, above named, will be and ¿ppear at the mill site, watercourse, and tenements in the said writ mentioned, and the nuisance theféof, on Friday the 24th day of June, instant, at 10 o'clock, A. M., then and there tó viéw the said- mill site, watercourse, and nuisance thereof done. And you are'hereby summoned to be and appear before the judges in the said writ mentioned, and then and there ready to hear the recognition above-mentioned.
    
      J. -Carey, jr., Sheriff.
    
      June 1-1 th, 1825. , -
    The names of the Recognitors of an Assize of Nuisance between Peter Ihrie the eldef, plaintiff, and William Barnet the elder, defendant: — - ....
    1, Thomas ISP Keen, Easton, - Esquire.-
    2.’ Philip H. Mattes, do. Esquire.
    3. John Green, ' - . • do. Lumber Merchant.
    4. John BoWes, • do. Brick maker.
    • 5. William Richer, - do.' Carpenter.
    6. Isaac C. Wykoff, ’ do. Druggist.
    7. Michael Simon, do, Hatter.
    8. Benjamin Hinds, do. Manufacturer.
    9. Jacob Able, ■ ' do. Boatman.
    10. Jacob Weygandt, jr.¿. dó. Esquire.
    11. Opp, do. Esquire.
    12. Nathaniel Michler, . do. Esquire.
    13. Moses Da-vis, do. Carpenter.
    14. Absalom, 'Reeder, do.. Merchant.
    1.5-. Benjamin Green', do. ' Turner. .
    16. William White, do. Innkpéper.
    17. James Sinton, do. . Clerk..
    18. Ralph Tinda-le, do. Carpenter.
    19. Jajnes. Hays, do. Innkeeper.
    20. Lewis- Gano, do. - Painter.
    21. Samuel Shouse, do. Esquire.
    22. Robert Depui, do. Tailor,
    23. John Able, do. Boatman.
    24. John Stewart, ' . do. Merchant.
    So answers, J, Carey, jr., Sheriff.
    
      Endorsement on the back of the foregoing pannel:—
    Copy of the within notice served on William Barnet the elder, personally. So answers,
    
      J. Carey, jr., Sheriff.
    
      June 11th, 1825.
    In the Court of Common Pleas of Northampton county.
    
      Peter Ihrie the elder 1 a , m , on,(August Term, 1825. Assize f of Nuisance,- — No. 28. v. William Barnet the elder.
    And now, to wit, this 15th day of August, A. D. 1S25, the sheriff of the county of Northampton aforesaid,-to wit, John Carey, jr., Esq., maketh return, (prout the writ of assize and the return thereof:) Whereupon the plaintiff exhibiteth his plaint to the court, and calleth upon the defendant to plead thereunto. And thereupon the said defendant, by his attorney, objected to the same being exhibited and filed; and exhibits to the .court here, a certain indenture, dated the 22d of December, 1804, duly executed and acknowledged between John Penn and William Penn of the one part, and the said 'William Barnet of the other part, granting and confirming, &c., unto the said William Barnet, his heirs and assigns, for the consideration of sixty-eight pounds, fourteen shillings, current money of Pennsylvania, two certain contiguous lots or pieces of ground, situate on the north side of Bush-hill Street and east side of Hamilton Street, in the town of Easton, in the borough of Easton, in the county of Northampton, marked in the general plan of the said town No. 273 and 274, also, a certain deed, dated the 25th of August, 1821, duly executed and acknowledged in open court, from Marmaduke M‘Michael, high sheriff of the county of Northampton, granting to the said William Barnet, his heirs and assigns, for the consideration of six thousand four hundred dollars, a certain messuage and lot of ground, situate in the borough of Easton, Northampton county, with a three story brick house, and a three story brick kitchen, and a frame shop thereon erected. Also, a certificate under the official seal of the prothonotary of the court, that he has carefully examined the records of the said court from the year 1808, to the 12th day of August, instant, and does find no unsatisfied judgments against William Barnet; and also a certificate from the recorder of deeds, in and for the county of Northampton, under the seal of office, that he had carefully examined the indices of the records remaining in the said office, and cannot find any mortgages on record against the said William Barnet. Whereupon, and on motion of Mr. Sitgreaves, of counsel with the said William Bar-net, a rule to show cause why the writ in this case shall not be quashed under the act of the 20th of March, 1724-5.
    
      Whereupon the court, having heard the said William Barnet by his said counsel, and the said Peter Ihrie by his counsel, take time to advise thereon until the first day of the next term of this court; and thereupon, the recognitors of assize being severally called, the following recognitors answer, to wit: Philip H. Mattes, Michael Simon, Benjamin Hinds, Jacob Jlble, Moses Davis, Jlbsalom Reeder, Benjamin Green, James Sinton, Ralph Tindale, Lewis Gano, Samuel Shouse, and John Stewart, and the other recognitors make default; and thereupon the assize is continued until the first day of the next term at 10 o’clock, A. M.
    And now, November the 21st, 1825, the parties appear by their attorneys, and the court discharge the rule to show cause why the writ issued in this case shall not be quashed: and thereupon the attorneys of the plaintiff read the plaint, and pray that the defendant may be required to plead thereto. And thereupon,' the said William Barnet by Mr. Sitgreaves his counsel, challenges the array, because the persons named in the pannel to the writ of assize annexed and returned to the said writ as recognitors of assize, were not selected, drawn, summoned, and returned agreeably to the directions of the act of the 29th of March, 1805, entitled, “ An act directing the mode of summoning and returning jurors,” and of the act of the 24th of February, 1806, entitled, “An act to alter the judiciary system of this commonwealth;” which motion being argued, the court take time to advise thereon until Tuesday next at 10 o’clock, A. M., to which time the assize is adjourned. And now, November the 24th, 1825, both parties appearing by their attorneys aforesaid, the court overrule the challenge to the array, and assign their reasons, (prout their opinion filed.) And thereupon the plaintiff, by his attorneys aforesaid, calls on. the defendant to plead to the plaint of the plaintiff; whereupon the defendant, by his attorney, prays an imparlance, and the same is granted to him until Wednesday, the 30th instant, at 10 o’clock, A. M. The recognitors being called, fifteen, to wit: Philip H Mattes, John Green, John Bowes, William Ricker, Isaac Wykojfi Benjamin Hinds, Jacob Jlble, Jacob Weygandt, jr., Moses Davis, James Hays, Lewis Gano, Samuel Shouse, Robert Depui, John Jlble, and John Stewart answer, and the other recognitors make default; and thereupon the assize is adjourned until the 30th instant, at 10 o’clock, A. M. And now, to wit, this 30th day of November, 1825, the parties respectively appeared by their respective attorneys: and thereupon the defendant, by Samuel Sitgreaves his attorney, comes and craves oyer of the writ of assize, and of the return thereof, and they are read to him, &c. And the same being read and heard, the said William Barnet defends the force and injury, when, &c., and says that he' is not, and on the day of issuing the said writ, &c. &c.
    The pleas are as follows:—
    
      
      Peter Ihrie the elder v. William Barnet the elder. ■ Assize of Nuisance.
    And the said William Barnet, by Samuel Sitgreaves his attorney, comes and craves oyer of the writ of assize, and of the return thereof, and they are read to him, &c. And the same being read and heard, the said William Barnet defends the force and injury, when, &c., and says that he is not, and on the day of issuing the said writ, or ever after, was not tenant as of freehold of the lands and tenements within, and upon which the wall, and dam, and obstruction, mentioned in the said writ, or any .of them have been erected, levied, and raised to the nuisance, as in the same writ is alleged, of the freehold of the said Peter Ihrie, and this he is ready to verify. Whereupon he prays judgment of the said writ, and that the same be quashed, &c.
    And if not, &c., then the said William Barnet, by his. attorney aforesaid, defends the force and injury, when, &e., and says that by a certain indenture, made the 23th day of May, in the year of Lord one thousand eight hundred and eight, at the county aforesaid, by and between the said Peter Ihrie of the one part, and the said William Barnet of the other part, reciting that whereas the said Peter Ihrie now is, and from the 9th day of December in the year of our Lord one thousand seven hundred and ninety-three, hitherto hath been lawfulty seised in his demesne as of fee, of and in a certain piece or parcel of land, part of the fulling-mill tract No. SO, situate in the borough of Easton aforesaid, containing two acres fifty-nine perches, strict measure, with a creek or stream of water called the Bushkitl creek running through the same; and that whereas the aforesaid William Barnet hath erected a dani across part of the aforesaid creek or stream of water, below the land of the aforesaid Peter Ihrie, by means of which said dam the water of the said creek is thrown back upon the land aforesaid of the said Peter Ihrie; and (that) whereas an action is now depending in the Circuit Court of the county of Northampton, at the suit of the said Peter Ihrie, against the said William Barnet for the recovery of damages sustained by the said Peter Ihrie, by reason of the stopping and throwing back the water by means of the dam aforesaid; and, reciting further, that for the purpose of putting an end to all differences existing between the said parties by reason of the premises, the said Peter Ihrie hath agreed to give, and the said William Barnet hath agreed to take from the said Peter Ihrie a lease for permission to throw back the water of the said creek upon the land of the aforesaid Peter Ihrie, as it is at present, and that the suit aforesaid, depending in the said Circuit Court, shall be discontinued on the payment of the costs thereof by the said William Barnet. Therefore it was witnessed by the said indenture, that the said Peter Ihrie, for, and in consideration of the rents, covenants, and agreements on the part and behalf of the said William Barnet, his executors, administrators, or assigns, to be paid, kept, and performed, as in and by the said indenture was mentioned and expressed; did for himself, his heirs, executors, administrators, and assigns, covenant, grant, and agree, to and with the aforesaid William Barnet, his heirs and assigns, that he the said Peter Ihrie will permit the said William Barnet, his heirs and assigns, to continue to throw back the water of the said Bushkill creek upon the land of the said Peter Ihrie, as it now is, so far as it respects the interest of the said Peter Ihrie in the creek aforesaid, for the space of one year, and from thence until the said Peter Ihrie shall have given the said William Bar-net three months’ notice to abate or remove the said back water from the land and .the bed of the creek aforesaid. And the said William Barnet avers, that the dam in the said indenture mentioned, and the wall and dam and obstruction of which the said Peter Ihrie above complains, and unjustly alleges was erected, levied, and raised by the said William Barnet to the nuisance-of the freehold of the said Peter Ihrie, are the same and not divers. And so the said William Barnet says that he levied and raised the said wall and dam and obstruction, without wrong and by the license and permission of the said Peter Ihrie, as well he might, and this he is ready to verify; wherefore he prays judgment of the said writ, and that the same be quashed, &c. And the said William Barnet brings into court, here, the indenture above-mentioned, whose date is the same day and year aforesaid. And if not, &c., then the said William Barnet, by his attorney aforesaid, defends the force and injury, when, &c.; and says that the assize aforesaid between him and the said Peter Ihrie ought not to be taken, because he says that he did not erect, levy., and raise the said wall and dam, thereby obstructing the said mill site and watercourse to the nuisance of the freehold of the said Peter Ihrie in manner and form as the said Peter Ihrie hath above thereof complained against him; and of this he puts himself on the assize.
    And thereupon, by consent of the parties, the further hearing of the cause is postponed until Wednesday of the second week of the ensuing January term, at 10 o’clock A. M., and thereupon the recognitors being called, Philip II. Mattes, John Green, Isaac C. Wyleoff, Michael Simon, Benjamin Hinds, Jacob Able, Jacob Weygandt, jr., Moses Davis, Absalom Reeder, William White, Ralph Tindale, James Hays, Lewis Gano, Samuel Shouse, Robert Depui, and John Able, answer, and the other recognitors make default, and thereupon the court direct the sheriff to resummon the recognitors to appear on the said day at ten o’clock A. M. And the assize is adjourned until the said 4th Wednesday in January next at 10 o’clock A. M.
    And now, to wit, this 25th day of January, A. D. 1S26, the plaintiff appears by his attorneys, James M. Porter and Peter 
      
      Ihrie, jr., and the defendant appears by his attorney, Joel Jones; and thereupon the plaintiff replied to the pleas of the defendant, that the said William Barnet the eldér did erect, levy, and raise the said wall, dam, and obstructions wrongfully and without the license or permission of the said Peter Ihrie the elder, arid to the nuisance of the freehold of the said Peter Ihrie the elder, in manner, &c. And of this he likewise puts himself on the assize. And thereupon the said sheriff makes return of the writ of resummons, (prout the said writ and return thereto:) Whereupon the recognitors being called, Thomas M‘Keen, Philip II. Mattes, John Green, John Bowes, William Bicker, Isaac C. Wykoff, Michael Simon, Benjamin Hinds, Jacob Able, Jacob Weygandt, jr., Michael Opp, Moses Davis, Absalom Reeder, James Sinton, Ralph Tindale, James Hays, Leiois-Gano, Samuel Shousei Robert Depui, John Able, and John Stewart answered, and Nathaniel Michler, Benjamin Green, and William White make default; and thereupon the defendant by his attorney moves the court, that as the said Peter Ihrie the elder has filed no replication to the first plea of the defendant above pleaded (prout the said plea,) nor has given any answer thereto, he prays judgment of the writ, that the same be quashed; and the court after argument, overrule the said motion, and .thereupon the said defendant, by his attorney aforesaid, prays judgment of the writ, arid that the same be quashed; and. assigns for further reason, that the matter set forth by his second plea above pleaded (prout the said plea) is not triable by the assize, and that the defendant may of right demand that the issue thereon shall be to the country, and not to the assize, and that he ought riot to be compelled to join in the issue tendered so far as it. relates to his second plea, nor put the-same to the assize, and the court upon argument overrule the said motion. Whereupon the plaintiff, by his attorney prays that the recognitors may be called and sworn to try the matter of assize, which is granted by the court; and thereupon the recognitors of assize being severally called, there answer and come Thomas M'Kean, Philip Hi Mattes, William Ricker, Isaac C. Wykoff, Michael Simon, Benjamin Hinds, Jacob Able, Jacob Weygandt, jr., Michael Opp, Moses Davis, Absalom Reeder, and James Sinton. Whereupon Thomas M'Keen asks to be excused from serving on the assize, and thereupon the parties consenting thereto, he is excused by the court, and the prothonotary calls in his place Ralph Tindale, the next named recognitor on the pannel, who answered and came; arid they having severally, with the exception of Michael Simon, answered that • they had viewed the place in dispute between the parties, were severally sworn or affirmed well and truly to try this matter of as- . size between the parties according to their evidence (the defendant by his attorney objecting to the form of the oath or affirmation,) and charged to inquire, &e.
    And now, to wit, January 28th, 1826, the recognitors of as» size, after being duly sworn, affirmed, and charged according to law, do say as follows, — That the said William Barnet the elder, at the issuing of the original writ of assize, viz. the 28th day May, A. D. 1S25, was tenant as of freehold of the lands and tenements within and upon which the wall and dam and obstruction mentioned in the said writ were erected, levied, and raised to the nuisance of the freehold of the said Peter Ihrie the elder, &c. as in the said writ is alleged. That the said Peter Ihrie the .elder was seised in his demesne as of fee, of and in the said mill site, and a certain watercourse and stream of water called the Bushkill creek, and the lands and tenements with the appurtenances in the plaint mentioned, and as therein specified, and as he the said Peter Ihrie the elder hath declared; and further the recognitors aforesaid do say that the said William Barnet the elder unjustly and without judgment did erect, levy, and raise the wall and dam in the view of the said recognitors placed, and in the said plaint specified, wrongfully and without the license or permission of the said Peter Ihrie the elder; thereby obstructing the said mill site, watercourse and stream of water running through and along the land of the said Peter Ihrie the elder, to the injury of the said Peter Ihrie the elder, and to the nuisance of the freehold of the said Peter Ihrie the elder, as he the said Peter Ihrie the elder hath complained. And the recognitors aforesaid do further find that the aforesaid wall and dam be removed and abated so as to remove the swelling thereby occasioned at and upon the land of the said Peter Ihrie the elder, and reduce and restore the water in the said Bushkill creek to its natural current and channel; and the recognitors aforesaid assess the damages of the said Peter Ihrie the elder, occasioned by the obstruction and nuisance aforesaid, beyond his costs and charges by him in his suit aforesaid expended, at two hundred dollars, and for his costs and charges aforesaid at six cents.
    
      January 28th, 1S26. — Judgment nisi. — Exit hah. fac. sei. cumfi. fa. Jan. 30th, 1826, at half past 12 o’clock A. M.— Writ of. error filed Jan. 30th, 1826 — half past 8 o’clock, A. M. — From the Record.
    
      Matthias Gress, Prothonotary.
    
      Peter Ihrie the elder v. William Barnet the elder. S In the Court of Common Pleas of Northampton county.
    
      Opinion. — This is an application to quash the assize of nuisance, because it contains á clause, “and put by sureties and safe pledges, the said William Barnet the elder,” when it should have been merely to summon him, as is alleged, on the part of the defendant.
    The application is founded on an act to regulate the practice upon writs of summons and arrests. 1 Penn. Laws, p. 164, fyc.
    
    It does appear, that the defendant is a respectable freeholder in this county. The sheriff has not demanded sureties or pledges of Mr. Barnet, but has only served the writ upon him. In England, this assize of nuisance would be an original to be obtained from the Court of Chancery, which is the Oficina Justitise, — the shop or mint of justice, wherein all the king’s writs are framed. It is a mandatory letter from the king in parliament, sealed with the great seal, and directed to the sheriff of the county, wherein the injury is committed, or supposed to be, requiring him to command the wrong-doer or party accused, either to do justice to the complainant, or else to appear in court and answer the accusation against him. Whatsoever the sheriff does in pursuance of this writ, he must return or certify to the Court of Common Pleas, together with the writ itself, which is the foundation of the jurisdiction of that court, being the king’s warrant for his judges to proceed to the determination of the cause. For it was a maxim, introduced by the Normans, that there should be no proceedings in Common Pleas before the king’s justices, without his original writ, because they held it unfit that the justices being only the substitutes of the crown, should take cognisance of any thing but what w’.as thus expressly referred to their Judgment. 3 Black. Com. 273.
    In this state, this writ of assize of nuisance is procured from the Court of Common Pleas, and the commonwealth of Pennsylvania is substituted in the place of the king. The style of all process shall be “The Commonwealth of Pennsylvania,” art. 5, sect. 12, Const, of Penn. This form of writ, in an assize of nuisance, was established in the case of John Livesay and Joseph Livesay, against Benjamin Gorgas and others, to be found in Judge Brackenridge’s Law Miscellanies, page 438.
    Upon inquiry, we find, that it has been pursued in all subsequent cases. If it is to be altered, modesty would dictate, that the alteration should be made by the Supreme Court. The act of assembly does not apply to an original, it contains these remarkable words: “but that the original process against freeholders shall be a writ of summons.” Let us hear what Judge Blackstone says on this subject in his commentaries, (3 vol. page 279.) The next step for carrying on the suit, after suing out the original, is called the process, being the means of compelling the defendant to appear in court. This is sometimes called original process, being founded on the original writ, &e. But. process, as we are now to consider it, is the method taken by the law to compel a compliance with the original writ, of which the primary step is, by giving the party notice to obey it. This notice is given upon all real prsecipes, and also upon all personal writs for injuries not against the peace, by summons; which is a warning to appear in court at the return of the original writ, given to the defendant by “two of the sheriff’s messengers called summoners, either in person, or left at his house or land, in like manner as in the civil law. The first process is by personal citation in jus vocando. This warning on the land is given in real actions, by erecting a white stick or wand on. the defendant’s ground, &c.; according to the letter of the act of assembly, it is applicable to the process, and not to the original, and a freeholder will be exempted from attachment, finding sureties, and distress infinite, which persons who are not freeholders, would be subject to. Under these impressions, the court discharge the rule.
    
      Easton, Nov. 21, 1825.
    Filed, Nov. 21, 1825.
    
      It. Porter, President of the third Judicial District of Pennsylvania.
    
    
      John Cooper, a judge of the Court of Common Pleas of Northampton county, Penn.
    
    
      Daniel Wagener, a judge of the Court of Common Pleas of Northampton county, Pennsylvania.
    
    In the case of Peter Ihrie the elder against William Barnet the elder, Samuel Sitgreaves, Esq., in behalf of the defendant, has challenged the array, because the sheriff has selected the recognitors of the assize. The question is attended with difficulty. The court wish that the legislature had prescribed the course of proceeding in this excellent remedy. But this has not been done; and the court is obliged to encounter the difficulty. The'sheriff selected the recognitors in John Livesay and Joseph Livesay v. Benjamin Gorgas and others, reported in 2 Bin. Bep. Penn. 192, &c.; and more fully in Judge Brackenridge’s Miscellanies, Penn. 438, &c. We believe that the sheriff has made such selections in all subsequent cases of assize of nuisance, and. therefore, we are constrained to say, that the acts of assembly, concerning jurors, do not apply to recognitors, and decide, that Mr. 'Sitgreaves takes nothing by his motion.
    
      Nov. 24, 1825.
    Filed Nov. 24, 1825.
    
      B. Porter, President of the third Judicial District of Pennsylvania.
    
    
      Daniel Wagener, a judge of the Court of Common Pleas of Northampton county, Pennsylvania.
    
    Plaint. — In the Court of Common Pleas of Northampton county.
    
      Peter Ihrie the elder v. William Barnet the elder. Of August Term,. 1825. No. 2S.
    The assize cometh to recognise, if William Barnet the elder hath erected, levied, and raised a certain wall and dam, thereby obstructing a certain mill site," and a certain watercourse,' called the Bushkill creek, and obstructed a certain other Watercourse, in the borough of Easton, in the county of. Northampton, to the nuisance of the freehold of Peter Ihrie the elder, situate in the same borough and county, within thirty years now last past; and therefore the said Peter Ihrie the elder,. bjr James M. Ptorter, his attorney, complains that the said' Peter Ihrie the.elder, on the first day of January, in the year, of our Lord one thousand eight hundred and six, was and still is seized.on his demesne, as of fee, of a certain water mill site, and ¿wo acrés and fifty-nine perches of land, situate in the borough and county aforesaid, together with a certain water course and stream ‘of water, called the Bushkill creek, running through and along the said land from the said mill site, so that at the said mill site upon the said land, before the levying of the said wall and dam,- there could be had, and was a fall of six feet four inches, of -and upon the said watercourse and stream of water, to be applied to the driving of water wheel, propelling mill works and machinery, and the said Peter Ihrie the elder, being so thereof seized, the Said William Barnet the elder on the day and year aforesaid, at the county and borough aforesaid, unjustly and without judgment levied and raised a cer-' tain wall and dam, thereby obstructing.the said 111111 site and water eourse, and the said stream of water running therefrom, through and along the said land, by reason whereof the said land is Over-Sowed, and the said mill site injured, and the fall thereof and of the said watercourse, is reduced to four feet, and the power thereof diminished, so that the same could not' and cannot be -applied, as it otherwise could and would have been, and still would be applied to the driving of á water wheel for propelling mill works and machinery,-and so he the said Peter Ihrie the elder, saith he is injured, and hath sustained damage to the value of three thousand dollars, lawful money of the United States; and therefore be bringeth thjs assize;
    
      John Doe v. Richard Roe. Pledges to prosecute.
    
      Resummons. — Northampton county, ss.
    The Commonwealth of Pennsylvania, to the Sheriff of. Northampton county, - "
    Greeting:—
    ■ We command you that you cause to come before our Justices of the Court of Common Pleas to be hplden at Easton, in and for the county of Northampton, the -twenty-fifth day of Jantiary next, at .ten o’clock in the forenoon of that day.,- Thomas M‘Keen, Esq., Philip H. Mattes, Esq., John Green, lumber merchant, John Bowes, brickmaker, William Ricker, carpenter, Isaac C. Wykoff, druggist; Michael Simon, hatter; Benjamin Hinds, manufacturer; Jacob Able, boatman; Jacob Weygandt, jr., Esq.; Michael Opp, Esq.; Nathaniel Mickler, Esq.'; Moses Davis, carpenter; JLbsalom Reeder, merchant; Benjamin Green, turner, William White, innkeeper; James Sinton, clerk; Ralph Tindale, carpenter; James Hays, innkeeper, Lewis Gano, painter; Samuel Shouse, Esq., Robert Depui, tailor; John JLble, boatman; and John Stewart, merchant; who were summoned and returned by you as recognitors of assize, in a certain plaint of assize of nuisance,-wherein Peter Ihrie the elder is plaintiff, and William Barnet the elder defendant, in our said' court prosecuted, so that-the said recognitors of assize may recognise and pass on the said plaint of assize between the parties aforesaid, and have you then and there this writ together,, with the names of the said recognitors, as you- shall answer.
    Witness the honourable Robert Porter, Esq., president of the said Court of Common Pleas at Easton, the 30th day of November, in the year of our Lord one thousand eight hundred and twenty-five.
    
      Matthias Gress, Prothonotary.
    Sheriff'Js return:—
    I do certify, that, by-virtue of the within writ, I' have summoned the within named recognitors; to wit, the several recognitors within named, to be and appear -at the time and place within mentioned, as within I am commanded. So answers,
    
      J. Carey, jr.j Sheriff.
    Speeifica'tions'of errors.-r-
    ,1. The Court of common Pleas should have quashed the writ of assize, it being contrary to the act of- the 20th of March, 1724-5, entitled, “An.act to regulate the practice upon writs of summons and arrest.”
    2. The1 court should have sustained the challenge to the array, because the recognitors were not legally impannelíed.
    3.. The .writ of assize issued below, is defective in form and substance, and without precedent.
    4. The plaint does not allege the seisin, &c., to have been in the plaintiff at and before the erection of the alleged nuisance; and it is consistent with the said plaint that the seisin, &c., had ceasedtbefore the said erection, or had been acquired thereafter.
    5. ' The plaint does not allege the violation of any such seisin, as the writ of assize of nuisance is legally competent to remedy, but alleges imperfectly, ¡¿artificially and improperly, seisin of the water fall site and watercourse.
    6. The court should have quashed the writ for want of answer to .the first plea, according to the prayer of the conclusion of it.
    7; The court should have- quashed the writ for want of answer to the second plea, setting forth an indenture, &c.
    S. The judgment quod capiatur assisa was not given by the court.
    
      9. The recognitors of assize were not duly sworn.
    10. The verdict is insufficient to support any jtidgment:— 1. The recognitors do not inquire of the force. 2. The matter of the first plea should have been found at large, divested of all questions of law, as to what is freehold, and what is not. 3. The matter of the second plea should have been specially found.
    11. The recognitors had no right to assess ..damages under the oath taken by them.
    . 12. The judgment ought not to have been' entered, “ nisi;” nor, except on motion in'open court,'
    13. The writ of ‘‘ habere facias seisinum” is not the proper-execution in assize of nuisance.
    14. The execution issued prematurely, and ought not to have issued without motion in open court.
    15. The plaint is,erroneous in counting for damages.
    
      Jones, for the plaintiff in error;
    The remedy by assize has been long in disuse. If it still exists it is strictissimi juris, 1 Bos, & Pull. 192, 11 Serg. & Rawle, 275; and if revived must be conducted on the principles, and in the forms of the old books, the only source of authority on the subject. It is a part of the jus antiquum, according to Butler, Pref. Co. Litt. 8vo, 13th Ed. — Reminiscences, p; 97. It was best .understood in the reigns of the first three Edwards, between A. D. 1272, and 1377. Hale’s Hist. C. L. 175. From the end of Ed. 3, it began to .decline; and in the reigns of Hen. 6, Ed. 4, & Hen. 7, was less known, and land titles came to be determined in personal, actions, Hale’s Hist. 176, cap. 8. Ejectment was used to recover a term, as early as the 14 Hen. 7, A. D. 1499. Hale’s Hist. 175. Adams on Eject, 8. 4 Dall. 140. This new use of the action, originated in the King's Bench, and was designed by that Court to get concurrent jurisdiction with the Common Pleas, in matters of real property. Adams, 9. The facilities it offered soon brought it into general use. Recognitors in assize could as such inquire only of the points of assize, and must find on their personal knowledge, 3 Bl. Com. 402, Glanv. 69, 64, 65, 67, 60, 61, Steph. on Pl. App. 51. note 44, and a. jurata was often necessary to supply defects in their pow-er. In ejectment the tribunal of fact was a jurata who were competent to inquire of any ■matters however multifarious, and were not. restricted to find on their personal knowledge. Worthington on Juries, 114, 115, Fortese, cap. 26. 'Add to this, the Statute of Uses, 27, Hen. S, changed the whole exterior of conveyancing. Feoffment with livery — grant with attornment — exchange with entry — lease with entry, (notorious facts to which only recognitions were adapted,) were superseded, and the seisin, (of feudal possession,) which was the only subject of a recognition, (See Glanv. 5, 304, 311. Fleta, lib. 4, cap. 1, sect. 7, p. 213,) could be ascertained only through the medium of deeds of which recognitors could never inquire. Fleta, Lib. 5, Cap. 6, sect., 55, p. 303, Lib. 4, Cap. 10, sect. 2, p. 233. Certain it is, that soon after this change in the action of ejectment, the assize was but little resorted to; and, in 7 Ed. 6, A. D. 1554, Plowd. 89, the course of the action was so far forgotten, that bo.th counsel and the court erred in a matter that must have béen familiar to practitioners of the days of Edward 3, and the error was corrected by authorities-from 23, and 2.6 assizes in Edward 3, decided more than 200 years previous,' which shows that the intermediate period was not replete with decisions on the law of assize.'. It is doubtful whether the assize can be revived for practical purposes. Printing with fusil types was not introduced ■ into England till 1475, about a century after the decline of assizes. The old Liber Intrationum was not published till A. D. 1510, and the Register, not till some time after, Steph. on PI. 7, and these books would probably be printed as early as any other. Much of the minute and practical in the law of assize, it is probable, was never committed to print. If, however, the entire system is extant, it is to be found in Glanville, Bracton, Fleta, Brit-ton, and cotempóráry writers, and in the reports previous'to Henry 6. Later writers supply but little on the subject, and that little is of less authority. Littleton wrote in. the time of Edward 4. when the learning of assize was less known and the actions less frequent, Hale’s Hist, Com,. Law, 175.
    I begin with the seventh exception. The/court should have quashed-the writ for want of answer to ;the second plea, setting forth an indenture, &c. No notice is taken of this plea,'unless the words without license and permission prefatory to the plaintiff’s joinder in issue on the third plea, are such. But this at most is denial of the defendant’s inference as to the law, and bad, Steph.' on PI. 215. 1 Saund. 23, (n. 5.) 1 It is a traverse of effect, not of fact, and therefore admits the fact, and the plaintiff is for ever estopped from denying the fact; even in another suit, Steph. on Pl. 234. The recognitors or jury, were estopped to find the contrary, Bull. N. P. 298, 2 Rep. 4; and if on demurrer the court would have barred the assize, they will do it on the present state of the pleadings, as is proved by the reason or ground of the practice of entering judgment, non obstante veredicto which takes place where the plea confesses the action, -but does not -sufficiently avoid- it, Tidd’s Pr. 828. Here is implied -confession of the whole, without avoidance of any thing. And whether the true inference of the law is deduced in the conclusion of the plea, viz. license and permission, is of no consequence; for if iiTany way it can defeat the action, the court will ex officio so declare it, notwithstanding any inaccuracy in deducing the legal inference, Plowd. 66. This plea shows prima facie a right in Barnet, (which is enough, Steph. on Pl. 354,) and nothing appears in any part of. the record to show that the right is not still subsisting. It might have been terminated by three months’ notice. But if such notice had been replied, the replication would have been demurrable, which shows that the assize was not the legal remedy. Assize of nuisance lies only for a tort. It sounds in force of which the recognitors must ex officio inquire. Booth on R. A. 288. Co. Ent. 92, b. Lib. Intrat. 122. Brac. Law Misc. 457. It is penal in its consequences, Fleta Lib. 4, Cap. 28, sect. 1 page 270. The cause of action in this case,-if any-thing, must have been non-compliance with the contract, a breach.of-the covenant, in neglecting to remove on three months’ notice. But assize of nuisance lies not for a neglect — a non feasance. Bro.. Mr. Nuis. pl. 9, 16, 81, Tit. sur le case, pl. 44. 2 Roll. Mr. 141. Tit. Nuis. Assize, H.pl. 7, 8, 9. Com. Dig. Tit. Action on the case for á nuisance, (D. 1.) Fitz. Nat. Brev. 83, note (a.) The effect of the indenture made in 1808, was retrospective — it legalized the erection, and was a release, or accord and satisfaction of the original claim for damage in 1806, see- 2 Ev. Path. 164. Ihrie could not after the execution of the deed treat Barnet as a tenant or trespasser at his election, and re-convert a breach of the agreement, into the original trespass expunged by it. As it regards, therefore, the question of remedy, .the erection was thereby made lawful ab initio; and so an erection by license and permission, which is a valid defence. Fleta, Lib. 4, Cap. 3, sect. 8. Cap. 28, sect. 15. Cap. 26, sect. 3, pp. 220, 273, 267. It was in law an abatement of the nuisance, for the erection was thereafter rightfully maintained; and it is a good plea that the plaintiff at any time, (or defendant before writ purchased,) has abated the nuisance, Rep. 55. Bro. Nuis. 8, tit. Mtion sur le case, 29, 16, Vin. 42, pl. 12, p. 31. (I. 2.) pl. 1, in margin: and this inference might have been deduced in the conclusion of the plea instead of license and permission. The plea certainly set up a defence to the .claim for damage, from 1806; for it shows a grant of the privilege, for a stipulated sum, since 1808, and shows in effect a release or accord and satisfaction as to all before 1808. Another circumstance demands notice. This plea tendered no issue — it would have been demurrable if it had, "because it set up new matter. Of-course joinder in issue on it was impossible. The.plaintiffs joinder in issue, therefore, though informal, (see Plowd. 91. Co. Ent. 92, b. 61, b.) can refer onfy to the third plea, because he says, that he likewise (i.e.in the like way) puts himself, on the assize, but the conclusion of the second plea is to the court. If the similiter is referrihle to the third plea only, the second plea is unanswered; if to. the second as well as the third plea, (it being nothing more than a joinder in the prayer at the conclusion of each plea,) it is-as to the second plea equivalent to-a demurrer, which admits, as- this plea does, the fact, but denies the effect. In any other view the defendant would be injured. He could, not demur, after issue joined, for a demur.rer is properly an excuse for not pleading on to issue. 3 Tho. Co. Lit. 438. He could not strike out the similiter, and then demur, for it was not his part to add it. , And thus mere matter of law expressly referred by him to the judgment of the court., was, in spite of him, referred’to the recognitors,for their judgment, in direct violation of the maxim ad cjuestiones juris non respondent jurátores. The plea concludes with prayer'of judgment that the writ be quashed. The same was repeated ore tenus after the lást pleading was put in. This was the proper method. See Fleta, lib. 5, cap. 6, sect. 44, p. 301, for the ancient practice, which, however, is proved by the pleadings in assize.
    
      Exception 6th. The court should have quashed the writ for want of answer to the first plea, according to the prayer at the conclusion of it.
    Assize of nuisance is areal action. It lies only between freeholders. 3 Bl. Com. 222. 1 Bin. 251, 253. Fitz. Nat. Brev. 185. Arch. Dig,. 28. 9 Serg. 8f Rawle 367. If either plaintiff or defendent be not tenant of the respective freehold, the defendant may plead the fact. The question of the plaintiff’s freehold is, however, a partofth'e contents of the general issue, which is, “ nothing levied to the nuisance-of the plaintiff’s freehold.” 16 Vin. 42, pl. 10; and it seems therefore unnecessary to plead it specially, where the general issue is also pleaded. But it is otherwise as to the question, whether the defendant has a freehold in the land on which the nuisance is. ‘The general issue raises.no question as to this, and the defendant must plead the fact if he would have the benefit of it. .This is a material, distinction. The former, on the plea of mil tenant if pleaded* need not be answered — the latter, or plea of non tenure, must be; and the distinction supplies a reason for the rule. . The plea in question is non tenure without disclaimer. It is really a bar, though often called a plea in abatement. It gives not a better writ. It denies the defendant’s liability to the action. 2 Saund. 44, note 4. Gilb. C. P. 250. Thel. Dig. lib. 11, cap. 22, sect. 4. It must be answered. In Fleta, lib. 5, cap. 6, sect. 44, a form of this plea is given, and the author adds et quo comperto vel non dedicto cassabitur breve. He then gives two forms of replication. The words, 11 or not denied,” and the fact that forms of replication'are given, prove the position. If non tenure of. parcel is pleaded, tenure of the residue is admitted by implication, and the plaintiff may abridge his plaint to the'parcel admitted, which abridgment confesses the defendant’s plea. 2 Saund. 44, note 3. Gilb. C.P. 249, 253. Thel. Dig. lib. 8, cap. 2.8, sect. 15, Bro. Tit. Abr. 12. Non tenure with disclaimer, in a. real action in which damages are not recoverable, compels the plaintiff to take judgment and have execution at his peril, for frustra'fit per plura quod fieri potest per pauciora.
    
    Otherwise if damages are recoverable; for then the plea must be without disclaimer, which puts the plaintiff to his election of two courses* viz. to enter judgment and have execution at his peril, which would be. a waver of his claim for damages, or if he will have his damage, he must have his-writ, that is, he must aver that the defendant is tenant of the land, as his writ assumes, and go to trial. Gilb. C. P. 249. Co. Lit. 362. a. b. 10 Went. Pl. 211. note from Serjt. Hill. This averring the writ as it is defined in Co. Lit. 362, is a traverse of the plea, (and this shows the plea to be a bar to the action-;) it was the answer requisite to the attainment of damages, and without, which it is expressly said in Co. Lit. 362; he would lose them, and judgment therefore is erroneous. As the plaintiff chose not to aver his writ, he should have waved his damage, and taken judgment, .(viz. the judgment prayed by the plea,) and issued execution at his peril. See Bro. Judgment, 132, for the nature of the judgment. Suppose, however, the plaintiff was right in his position that the first and second plea required no answer, our next proposition is, that oh that, supposition, they should have been found specially and at large. 10th Exception, 2d and 3d Specifications. This is proved by the most obvious principles and express authorities.
    If special matter be pleaded in abatement or in bar, the assize shall be taken at large. Com. Dig Assize, B. 19. To take the assize at large, is to take a special verdict. Booth, 212, 213. Here is no special verdict. Non tenure, it is true, can'neither be pleaded nor found specially, it being a mere negative; but tenure, which the recognitors here .have found is an affirmative, and the acts or faets constituting the supposed title of estate holden, admit of a special finding,-so as to leave the question of law whether they constitute a tenancy of the freehold or not to the court. There is no finding at all on the second plea, for the whole residue of the verdict is merely a tautological finding of the general issue. General principles are violated by the course pursued in this case. It is a curious feature of the law of assize that it allows not answers to pleas of a certain description; yet such is the fact. Whafthese pleas are it may be .difficult in some cases to determine; but that being ascertained there is no difficulty in showing that all such must be specially found The object of pleadings is to furnish a medium for the application of the principle ad questiones juris non respondent juratores. So far as the parties agree upon the facts in’ their pleadings, (which they may do wholly or in part,) the office of the jury is superseded, and the jury is estopped to find the truth even against the state of the fae(s as detailed and conceded in the pleadings. Ham. Anal. 21. 2 Rep. 4, B. N. P. 298. Hence demurrers to declarations — to pleas — to evidence. Hence the special traverse, the general issue concluding with an issiat, the object of which prevents the law arising from the fact from going before-a jury. Steph. on Pl. 201. And these forms of pleading, for this reason were very common before the'practice of granting new trials. Ham. Anal, of Pl. 13, 14. Judgments non obstante verer dicto and the power of the court to control the jury on the compound or complex issues, show it the constitutional power of the court to decide the law. Willes, 583. Vaughan, 135. Bushel's case. There is no equivalent in the law of assize by which this object may be attained in regard, to pleas'not answerable, but the' special verdict, and without this the recognitors become uncontrollable arbiters of. the law arising on such pieas. In this case the question of freehold raised by the" first plea is a mere question of-law, and the colourable matter usually pleaded in assize involves this question. Steph. on Pl. 193, 228, 230, 231, and colour to be good must be doubtful, to lay gents or the jury, tdreh. Dig. Pl. 212. A series of inferences results from the position that these pleas were not answerable. They were” not demurrable, Plowd. 91. Booth, 270, consequently they could not be proved or disproved by testimony, for frustra fit per plur a quod fieri potest per pandora. See Bl. Com. 402. The court could not charge, not knowing the facts, nor grant a new trial or recognition de novo. There is no example of a recognition de novo, new trials having come in lieu of attaints, which went into disuse with recognitions. Nor would a recognition de novo, meet the exigency of a supposed error not in the recognition, but in a plea collateral to it. But suppose evidence adduced under these'pleas, it could not be demurred to, for. the plea itself is not demurrable. Plowd. 91. In short, the court can take no notice of such pleas till after verdict found on them., Plowd. .89, elseq. proves this. In that case the plaintiff demurred improperly to a plea.of this description. The court, after argument and consultation, sustained the demurrer. Then the plaintiff discovered his error, yet the court put it to the recognitors to inquire of this plea, and it is.absurd to suppose they admitted testimony and charged on a plea which they, had already adjudged idle. Anciently the maxim ad questiones, juris, &c. was adhered to with great strictness. The assize could not decide on the law connected with disseisin, though involved in the general issue. Worth, on Juries, 118, 119. Glanv. Lib. 2, Cap. 6, p. 61. The Stat. of West. 2, Cap. 30, however, declares that if the jury will of their own head say it is disseisin, their verdict shall be admitted at their peril. Rob. Dig. 326. -. The peril attached to the performance of this act, amounts to a’restriction upon the performance. With much less plausibility can it be contended that they could decide the law arising from collateral matters. See Worth, on Juries, 119, 173, 174. They do, however, unless they render a special verdict. But waving the. argument thus far, the oath “ well and truly to try this matter of assize according to the evidence,” does not comprise these pleas, which are collateral to the ássize; and so the finding on them, if otherwise unobjectionable, was not under oath. (9th Exception. In regard to all' matters collateral to the assize, or not of the point of assize, the recognitors could act only as a jurata, arid should have taken the juror’s oath. Booth, 210, pl. 10, pp. 213, 214. When the assize is taken at large the recognitors are sworn as a common jury. Com. Dig. Assize, 13, 19. Fleta, lib 4, cap. 11, sect. 12, p. 238. Attaint was founded on the recognitor’s oath, which comprises the general issue only, or the points of assize. 3 Bl. Com. 402, 3. Fleta, lib. 4, cap. 1, sect. 7, cap. 9, sect. 8, cap. 10, sect. 2, cap. 17, sect. 9, pp. 213, 231, 233, 248.
    The oath is otherwise objectionable. It is not the oath prescribed by the ancient law; for which see Fleta, lib. 4, cap. 9, sect. 1, p. 230. Worth, on Juries, 86, 7. The ancient oath was administered in 3 Wils. 541. Litt. sebt, 514. The oath in this case, is evidently formed on the-modern juror’s oath. It omits, however,- the phrase, “and a true verdict give,” which hath its equivalent in the ancient oath. No ancient oath’ can be altered or new one imposed but by act of parliament. 2 Inst. 479. 3 Inst. 165. Either the ancient oath, or the. oath prescribed by the act of assembly, 4 Smith, 329, should have been adopted. , Courts cannot compel a juror to take an oath unknown to thb law. The principle assumed in this case, is legislation, and would authorize the devising of an oath on every trial. This oath,is also defective in this. It does not comprise the question of damage.. (11th Exception.) Damages are not of the matters of assize. The assize is taken at large when the recognitors inquire of the damages. Booth, 213, pl. 10, 2. This error is'traceable to another, that of counting for damages. (15th Exception.) The whole duty,of the assize is specified in the recital of the writ in the plaint, v.iz, to inquire of the plaintiff’s freehold, the wrongful act, and whether the act is a nuisance. Co. Ent. 92, a. The plaint is merely an amplification of the. writ. In the conclusion the nuisance is assigned in particular, but no sum in damages is demanded.' So are all the plaints, Lib. Intrat. 122. Rastal’s Ent. Browne, Dec. & Pl. 67. Which shows that assessing damages is not part of a recognition But it is itself error. In Pilford’s case, cap. 9, 10 Rep. 117. a. it is said that in real actions the demandant shall never count of damages. Booth, 75, note 2, Burr. 1086, 7. The course of the proceeding is detailed in Fleta, lib. 4, cap.,9, p. 230, from sect. 1, to sect. 9. In sect. 9, it is said after judgment as to the assize, the justices inquire of the damages. The inquiry of damages, was therefore premature. The defendant .was not bound to come ,prepared to go into it at that time, as he could not know any other course of pror ceeding than that detailed in the books.
    . The verdict is also defective. The .recognitors did not inquire of the force. (10th Exception — 1st Specification.)
    In Booth, 288, this omission is declared to be error. All the entries show that this, inquiry has been made, although the force be not put in issue. Co. Ent. 92, b. Lib. Intrat. 123. Livesay v. Gorgas, Brack. L. M. 457, which are casés of assize of nuisance. So, Co. Ent. 60, b. (the entry in Webbe’s case, 8 Rep.) Booth, 294. The reason of the rule is, that the law presumes 
      prima facie that the act was doné with force, and therefore has made the remedy festinum. Fleta, lib. 4, cap. 5, sect. 8, p. 2.23. But it giyes the defendant the benefit of having it inquired of, and the judgment at common law varies according to the finding. If force be found, the judgment is a capiatur pro fine. Lib. Intrat. 122, 3. If negatived, the judgment is a misericordia. Co. Ent. 92, b. Neither of .these judgments (the only forms at common law) can be entered, for the law "does not presume that there was no force from the, omission in the verdict,, as it does in trespass. Bro. Assize, 67. This defect cannot be cured by-verdict, as it arises on it. The statute 16 and 17 Car. 2, cap. 8, Rob. Dig. 39, 40, does not apply to this case. It -gives, the court power only to amend, and of course applies to amendable errors only. In this case either judgment would be incongruous with the previous part of the'record. No legal judgment'could be entered, but judgment nisi was certainly improper. (12th Exception.) It is obvious that the provisions of the judgment must be adapted to the state of the fact, and the nature of the nuisance, and must therefore be in definite arid precise, terms. -Hence, on this view, the plaintiff must show the jurors, de eo quod'nocet qualecunque sit illud'vel quantum velper quas metas ut certa res in Judicium reducatur. Fleta, lib. 4, cap. 27, sect. 19, pp. 269, 270. The redress is specific, by prostration, rebuilding, repairing, opening, ad-measuring, so as to conform to the ancient state in height, breadth, length, depth,- narroWness, &c. Fleta, lib. 4, cap. 28, sect. 4, p. 270. Sir William Blackstone supposes that the remedies of. the ancient law contain an equivalent for the specific remedies of chancery. 3 Com. 52. The, courts, in ancient times, pronounced their judgments in actions of assize of nuisance with great deliberation upon the case settled by the verdict. Fleta, lib. 4, cap. 9, sect. 8, p. 231. Worthington on Juries-, 95. In no real actions can judgment be entered without motion in open court. 3 Caines, 139. The practice adopted in this case is,exceedingly dangerous. In dower, and in those real actions where the judgment is executed by a writ of Habere fac. seis., there is little danger: the realty remains, but the execution in this case is destructive, and should not be moulded by the party to suit his own views. A house, a mill, or a dam may be reduced to ruins, when the judgment of the court would require but a slight alteration. Admitting, therefore* that in those real actions tp which a general form of execution- is applicable, and which effect only a transmutation of possession, a judgment in .this form would be good; the peculiarity of this action of assize of -nuisance is one in principle, and is sufficient to bring it-within the rule contended for.
    
      2nd Exception. The writ of assize is defective in form and substance, and without precedent.
    This exception touches a vital part’of the case, and, if tenable, must be fatal. -Original Writs are the subjects of legislative enactment; they were all established and approved by the common council of the whole realm, and can (nulla terms) in no respect be altered. Co. Lift. 73, b. and authorities there cited. See 8 Rep. Preface, 8 Rep. 63. The originals were essential to the due institution of the suits, and limited and defined the action itself. Anciently no case was remediable to which the language of some known writ did not apply, and hence the enumeration of writs and that of actions became identical. Steph. Pl. 8. This .writ contains the clause that the defendant be put, &c. to appear and recognise. This is not the object of the original in assize.. The object of the appearance is to hear the recognition: See Co. Ent. 92, a. Glanv. 336, et passim. This is a variance in substance. See Glanv. 278, (note,) and is fatal. Cro. Eliz. 402. It omits the phrase in the original writ, vel ballivum si ipse non inventus est, and the defendant has a right to appear by bailiff in assize. Com. Dig. Assize, B. 8, p. 563. Fleta, lib. 4, cap. 5, sect. 8, p. 223. Fitz. Nat. brev. 177.F. 2 Inst. 415. Glanv. 336, 278, note (2.) Another objection is, that the writ in this ease has no precedent. It may be described an action of assize of nuisance on the case, which is a novelty. All writs of assize of nuisance are brevia format a. The want of power to form writs upon the circumstances of the ease, occasioned the statute of Westminster, 2 cap. 24. Rob. Dig. 157. This statute gave the power of forming writs to the clerks in chancery only; and to them only in cases closely analogous to existing writs, in consimili casu. It has long since been expended. No new writs at the present day can be formed by authority of it. 3 Bl. Com. 52. The general form of the modern action on the ease, was devised by the clerks to provide for all the cases similar to those provided for by formed writs in assize of nuisance, and it is this mode of executing the power given to that state, which Sir Wm. Blackstone regrets. And not only were the similar cases provided for in this way, but the formed brevia in assize then existing, have been converted into the action on the case. This conversion of formed writs into actions on the ease, was, for some time, resisted, but was long since fully established; Ham. N. P. 8, 30, note. 4 Co. 94. Yelv. 21. Cro. Eliz. 198, 199, 520, 845. This is a writ of assize, for obstructing a watercourse. There is no such writ: 2 Roll. M. 144, (P.) pl. 6, 16 Fin. 37, pl. 6, are authorities in point. The register of writs contains no such writ. See pp. 197, 199. Fitz. N. B. 183, 184. The objection of novelty is not new. It was taken to a writ of assize of nuisance in 22 Hen. C. &.D. 1444, about one hundred and fifty-nine years after the 13th Ed. 1. 1 Fitz. N. B. 183, note (a.) 2 Roll. Mr. 144, A. (1.) And the objection is universally applicable, except to the single form of the action on the ease, which owes its origin to the principle on which this objection is founded. Willes, 580, 581. Winsmore v. Greenbank, see 2 Lord Raym. 938. Co. Litt. 81, b. and note 49, by Mr. Hargrave.
    
    
      Another objection to the writ may be discussed in connexion with the 5th exception; viz. that the plaint does not allege any such seisin, as the writ of assize of nuisance’ is competent to remedy, but alleges imperfectly, inarfificially, and improperly, seisin of the water mill site and watercourse. The plaint or count, is the plaint of the writ amplified. No writ, of course, exists for the, casq, if the assize is not applicable to such seisin, as is alleged. The seisin in assize must' be in demesne. Real actions are divided into four classes, corresponding with the. four kinds of seisin. Booth, Int-rod. pp. 2, 3; viz. seisin, (1) as of fee, demesne, and rights, (2)séisin as of fee and rights, (3) seisin as of fee and demesne, (4) seisin as of demesne. Fleta, Fet Assavoir, p. 446, sect. 14. See Glanv. 39, note. Writs of assize of Nov. Diss., and writs which begin Si a. te fecerit securum, are applicable only to seisin in demesne. The. writ of assize of nuisance is of this class. Fleta, lib. 4, cap. 28, sect. 8, p. 271.' Davis’s Rep. 151. See Plowd. 154, and Fleta, lib. 5, cap. 10, sect. 1, p. 316. A man cannot be seised in demesne of any thing incorporeal. 2 Bl. Com. 106, 107. Seisin in demesne applies to such property only as can be subjected to some service, and not to a service to which corporeal property is subjected. See 1 Bart. Elem. Con. 58, note. The. dominicum may be in one while an appendage or service is in another. 2 Bl. Com. 104. Non dominici pais est usufruclus. Fleta, lib. 4, cap. 31, sect. 9, p. 277, also p. 261, sect. 8, cap. 22.
    Take this case as an example. — The defendant, Barnet, may. be seised as of fee of the alleged water power, on the land of which the plaintiff, Ihrie, is seised in his demesne as of fee, and nothing inconsistent, with this supposition is averred. Hence, in the action on the case, after alleging seisin or possession, it is necessary to aver, in order to exclude, this inference or conclusion, that by • reason thereof, the plaintiff ought to have the benefit of the current, &e., as in 1 Saund 346, note.(2,) 8 Wentworth, 535, or prescribe in a que estate, as in Lil. Ent. 62; Co. Ent. 92.
    An incorporeal right must be annexed to freehold in demesne, and so a part of it,, otherwise the assize is not applicable. If it’be in gross, assize lies not, but covenant, or case. 2 Roll. Ass. 141, 142. Ass. H. pl. 12, 13. , A man cannot .be seised in his demesne of a stream of water, 2 Bl. Com. 18, nor bring his action to recover possession of water by the name of a poól or watercourse. A watercourse is a thing quite distinct from the land.- 1 Wils. 175. Poph. 166. So of the mill site. This is not alleged qua land, but as a possible'use of the-stream and the-land. The stream, or rather the impetus of the stream, is the thing of value, and the invasion of the plaintiff’s property in it, is evidently the gravamen of the plaint. Undoubtedly a man may grant the rights of erecting a mill on his land between given points, (see Angell, 10.) and this would be the grant of a mill site, and yet, (notwithstanding such a grant,) the demesne would still remain in the grantor, and a use only be parted with, of which the grantee might be seised as of fee, but not in demesne. The precedents of this action all show an actual present injury done to some corporeal tenement, of which seisin in demesne is with propriety alleged. Co. Ent. 92. Lib. Intrat. 122. Rastal Entr. See also Bro. dlbr. Nuis. pi. 16; 14, 19, 18. Action stir le case, 57. But, again, this action is never applied to nuisances, which are not by law'abateable, although the action on the case often is; and this is a characteristic distinction between the action on tlje case and the assize of nuisance. The rule on the subject of redress by act of party is laid down in 4 Burr. 2428, and in 1 Burr. 265, 267, and restricts this mode of redress to actual palpable injuries, requiring no exercise of judgment. In. 9 Rep. 55, (a.) redress by act of the party, and assize, are spoken of .as co-ordinate remedies, See also Cro. Car. 184, 185. King v. Wharton, 12 Mod. 510, If a way be only narrowed, case lies; if wholly stopped, assize of nuisance lies. Bro. Nuis, pl. 3, 13. 2 Roll. Mr. 144. Nuis. (P.) 4 (R.) pll. 3, p. 142. (H.) pl. 16. In the latter case the party may also abate; in the former he cannot. I argue from the coincidence. The cause of this distinction is supplied by the history of the. origin of the writs themselves. When every writ was the result of legislative enactment, the grosser and palpable injuries would be naturally the first objects of attention. Mills would be provided for before mill sites, and actual uses before possible and prospective uses. A man’s visible and productive freehold rather than his purposes. The catalogue of grosser injuries was not exhausted when the compendious and general form of the action on the case was devised by the clerks, into which the whole residue of similar injuries was .thrown. This mode of providing for them, was in some measure dictated by necessity. To have pursued the mode of legislation for each particular case, into thewide field now occupied by the action on' the case, would have swelled the register to many volumes. Chief Justice Holt’s reasoning in 2 Lord Raym. 958, applies, and is applied by him to the action on the easel it is not true as applied by Mr. Lewis to the assize in Brack. L. Mis. 447. The fallacy consists in the misapplication of correct principles. The assignment of the nuisance, in this plaint, indicates the real nature of the grievance. It is, diminishing the fall of the water, so that the plaintiff could not do (not as he had done) but as he otherwise would have done. In áll the plaints cited, and the pleas cited, from Bro. Abr. Nuis. 14, 16, 18, 19, the averment is, that the plaintiff could not do as he had used to do; thus averring, the interruption of an actual existing use, which is essential to a nuisance in the sense of this action. Baten’s Case, in 9 Rep. 54, is an exception et exceptio probat regulam. The principle vouched is, Lex non requirit verifican quod apparet -curiae; and, on that ground, the court distinguished the case from those cited by the defendant’s counsel, otherwise it would have fallen under this rule. In the action on the case, you need not prove a specific injury. Show a right, and an invasion of it, and it is enough to recover, even if the defendant show that such invasion was in fact a benefit. Nor. Peake, 493, 494. But it is not so in assize; — it must be injurious as well as prejudicial. Fleta, lib. 4, cap. 28, sect. 13, sect. 14, pp. 273, 274. This reasoning is not evaded by saying that this writ is in consimili casu.-. The argument is, that there is no such writ among the ancient originals formed by parliament, nor in co.nsimilt casu formed by the clerks in pursuance of the authority of the statute. The clerks did not form this writ. All the special writs which they formed are in the register. Steph. on PI. 7; but they provided for the case detailed in it by the general form of the action on the case, which is the writ in consimili casu that the plaintiff should have adopted. The principle assumed by the plaintiff would allow the conversion of every possible declaration in the action on the case for a nuisance, into an assize of nuisance on the same'case. This would be opening a wide field for this action, and the application of its specific redress would be a^'ample, as the greatest diligence of the ancient clerks in the chancery, or the utmost liberality of the judges could have made if. See 3 Blacks. Com. 52.
    
    
      Exception 4th. The plaint does no.t allege theseisin, &c., to have been in the plaintiff at and before the erection of the alleged nuisance — it may have ceased before, or have been aequired thereafter.
    The averment is, that he was seised on the 1st of January, 1806, and that he still is seised. Continuity of seisin is not averred. He then avers, that, being so seised, the defendants on the day and year aforesaid, (omitting the word afterwards,) levied, &c. It does.not appear, from any .thing averred, that the plaintiff had any thing more than a momentary seisin.on the 1st of January, 1806. Such a seisin would satisfy the averment; nor that this momentary seisin was not after the act complained of; nor that the seisin had not passed tó some other before the act complained of. Yet, if it was the seisin of any other, and not of the plaintiff, that was violated at the time of the act done, the plaintiff cannot have this action, though the seisin subsequently came to him, Bro. Nuis. 16. 16 Vin. 41, (X.) pl. 1, and note pl. 3, pa. 29, pl. 20. Fleta, lib. 4, cap. 27, sect. 19, p. 270; but quod permittat, if any thing would be the remedy. For the requisite degree of precision in averment, see Leeds v. Shakerly, Cro. Eliz. 751. Stansby’s Case, Id. 754, Sir Nicholas Point’s Case, Cro. Jac. 214. The two last are cases of forcible entry, yet the rule is equally rigorous in assize of nuisance; for anciently it was equally penal in its consequences. See Fleta, lib. 4, cap. 28, sect. 1, p, 270. Hence the necessity to inquire after the force. If the recognitors had found force,,the defendant might move this objéction in arrest of the judgment cap. pro fine, and conclude non constat, whose seisin was violated, as in the cases cited. See the plaint in Co; Ent, 92, where the ahxious precision of the pleader in averring the seisin, was unnecessary, unless this be fatal neglect. The verdict in this case cures nothing. It derives all its certainty from the plaint. Unless title is alleged, the recognitors find none, for they find the fact to.be as the plaintiff has declared. The rule on the curative operation of verdicts, is well laid down in 1 Day’s Rep. 186, 187, note. , See also 9 Serg. & Rawle, 91. Steph. on Pl. 166, 167.
    
      Exception 1st. The writ is contrary to the act of the 20th of March, 1724-5, Purd. Dig. 28, 1 Sm. Laws, 165, which makes it the privilege of freeholders to be sued by summons. The proof that the defendant is within the protection of this act is on the record, and also the decision of the court below, that the use of this, writ is consistent with the protection intended to be given,by it. The act declares that the writ against freeholders shall be a' summons in the form there given. • This writ is . certainly not a summons, nor in the form prescribed, and fhe protection of the act, by express terms, extends to matters of form. Barnard v. Field, 1 Dall. 348, 349. Hudson v. Howell, Id. 310. It is a writ of arrest. The writ in assize is an attachment. Com. Dig. B. 9, 2. An attachment is a writ to. take the body, and differs in nothing from a capias. Booth, 8. Rttach means to take or apprehend by command or writ. See Law Dictionary. The returns to writs in assize prove it. Co. Ent. 92. Brownl. & Golds. 27, 37. Aston’s Ent. 123, 124, 126. Vidian’s Ent. 89. Brownl. Brev. Judic. (Pone,) 229, 232. Com. Dig. Ass. B. S. Putting by sureties, or attaching, was anciently the mode used to secure a'm.an’s attendance to answer a criminal charge. Glanv. 345, 346. And imprisonment was the consequence not of finding radios et salvosplegios. 2 Inst. 189. The sheriff was authorized, or rather he was required, -to make the defendant find bail for his appearance, or to imprison him. The forms of replevin in 2 Grayd. 152, Plead. Assist. 381, contain the words put by sureties and safe pledges, but in the notes the compilers direct the substitution of the word summon, if the defendant be a freeholder. The cdurt below, in their opinion, say “ the sheriff has only served the writ on the defendant.” Serving a writ is executing its exigency — doing what it bids to be done, which in this case is putting by sureties and safe pledges. No specific return, but attached by pledges, or by goods, or attached and committed for want of sureties, or non es't inventus, (see the returns cited, and see another form of return in Fleta, lib. 2, cap. 69, sect. 1, p. 153,) would answer the exigency, or be otherwise than merely void. The general return, served, is good only because the court will intend it legal until the contrary be shown. ‘
    The court also say, that the original in assize is a mandatory letter in the alternative, commanding the defendant to do justice, or appear in court, and they cite 3 Bl. Com. 273. This is not true, and the commentator is treating of the prsecipe quod reddat. Certainly the writ in this case is peremptory — it contains no alternative. The writ itself disproves the assertion of the court, unless they mean to deny that the writ in this case is not an original, but process, which cannot be pretended. Co. Ent. 92, (a.)
    
    
      Third Exception. The court should have sustained the challenge to the array. The recognitors were not selected, drawn,, summoned, and returned, accordihg to the acts of March 29th, 1805, Feb. 24th, 1806, Purd. Dig. 437, 441. 4 Smith, 237, 274. The writ itself directs- to a different course, and is .therefore erroneous on its face. These acts prescribe the only mode, known to our laws of bringing.a jury before the court to inquire of matters of fact. -
    The question is, are recognitors jurors within the meaning of the act? Every evil intended to be remedied by .those acts exists in regard to recognitors, as well as jurors. The sheriff, by this practice, is relieved from the check of the wheel, the commissioners and the statutory oath. . He acts also without the sanction of the common law oath, provided for the case. See the Register, Cro. Car. 26. Imp. Sheriff, 32. Unless the objection is tenable, this is an instance in which the policy of modern law is,evaded, by the revival of an obsolete remedy. If the plaintiff sues in case, the act applies, and the defendant is protected;, if in assize, he is at the mercy of the sheriff,, and so by the election of the party his rights are varied. . No party ought to be permitted to do this. The act should be applied.
    8th Exception. The judgment Quod capiatur assisa was not entered. This is ajways observed when the assize is taken. Co. Ent., 92, b. 62, a. 61, a. Lib. Intrat. 120, b. It is evidently the language of the court, and conclusions of pleas in bar of the assize, prpve it á judgment., - “Wherefore he prays judgment if .the assize, &c. ought to be taken.” Co. Ent. 61, a. and judgment against the pleas is “ quod capiatur inter eos inde assisa.” The replication, concludes,. “Wherefore he prays judgment,1 and that it be proceeded to the. caption of the assise.” Co. Ent. 61, a. In Lib. Intrat. 120, we have a demurrer concluding with a prayer of judgment', and “ that the Abbot aforesaid from having his assise be precluded.” This form is founded doubtless in good reason,-which would be perceived and felt, 'if the action were to become common. Its object probably is to indicate the opinion of the court whether collateral matters pleaded are triablé by the assize or not, or whether.in point of law they áre a bar to the action. This judgment of award of the assize, • after sufficient matter pleaded in bar, would be error; for in such-case the assize would cease till issue on the plea be taken, and verdict found against the plea, or judgment against it on demurrer.
    
      J. M. Porter, for the defendant in error,
    contended, — That assize of nuisance is an existing remedy. The act of the 22d of May, 1722, sect. 21, (1 Sm. Laws, 142,) constituting the Court of Common Pleas, directs that the justices, or any three of them, “shall hold pleas of assizes,” &c. The 22d section empowers every of the justices “to grant replevins, writ's of partition, writs of view, and all other writs and processes upon the said pleas and actions cognisable in the said respective Courts, as occasion may require.” In Wright v. Crane, 13 Serg. & Rawle, 452, this act is declared not to be obsolete.,
    In 3 Binn. 599, is the report of the judges of the Supreme Court as to the Bi'itish statutes in force in this state, in which áre nineteen statutes relative to disseisin, writs of entry, and assize, are all declared to be in force, and the judges recommend them to he incorporated. The statutes in force will be found in Roberts’s Digest, pages 144 to 167, and in the appendix to that work, 434, 435. The first of the statutes reported to be in force, is 20 H. 3, c. 3, A. D. 1235.; the last is 32 H. 8, c. 33, A. D. 1548.
    This report of the judges was made, top, in 1808, after the passage of our acts relative to the selecting and summoning of jurors. It is signed by Judges Tilghman, Yeates, Braekenridge, and Smith. And, in Witherow v. Keller, 11 Serg. & Rawle, 273, 277, Judges Tilghman and Duncan said that this report of the judges settles the law, that the remedies under those statutes exist in this state.
    In Livesay v. Gorgas, 2 Binn. 194, in an assize of nuisance, Judge Tilghman expressly decides that assize is an existing remedy. And on réference to the record it appears that in that case a motion was made to quash the writ, in the Court of Common Pleas, which was rejected. This case was subsequently tried at Nisi Prius, and judgment entered on .the, .finding in this court. , Mr. Lewis was concerned for the demandant, and Mr. Rawle for the tenant. Subsequently Mir. Dallas instituted an assize of nuisance in the case of Mather v. Sheetz, in the Court of Common Pleas of Montgomery county, which was tried and decided in favour of the demandant before Judge Wilson.
    The case of Wentz v. Kline, a case of assize of nuisance, was afterwards instituted in the Court of Common Pleas of Montgomery county, a verdict and judgment were given for the demand-ant, which judgment was affirmed in this court on the 5th of April, 1824.
    In 9 Serg. & Rawle, 367, Judge Duncan says assize of nuisance is a subsisting remedy. -We have thus the declared opinion of no less than five of th'e judges of the Supreme Court, who are all deceased, and of three presiding judges; to wit, Judges Wilson ánd Ross, in the cases from Montgomery county, and Judge Porter, in- this case, that the remedy exists, and whenever spoken of by-any of them, this mode of redress is mentioned in terms.of approbation, as being the only complete remedy existing. .
    The manner of proceeding in assizes; from the earliest period of Its adoption to the end of the reign of Philip and Mary, will'be found very lucidly and methodically laid down in Mr. Reeves’s valuable history of the English law, who traces the trial by jury or assiSa, as it was first called, from the rude ages of the conquest, through its various modifications and improvements, down to the time of Elizabeth. The writers to whom Mr. Reeves principally refers are Glanville and Bracion: to the latter of whom Fleta is but a commentary. Fleta was written shortly after 13 Edw. 1. The process, in 'assizes, was a summons; attachment never went but when the party was in,contempt. It never was necessary that the tenant in an assize should be a freeholder. It was enough that he claimed to have right to do the thing complained of. In-early times the recognitors must know the facts of their own knowledge, and decide solely on that knowledge without witnesses. The first notice we have of any recognition or assize, is in the constitutions of Clarendon, A. D. 1164. It'was not until many years after the reign o£ Edw. 1, that juries were permitted to judge of presumptions, in other words to decide upon evidence submitted to them.Previous to this timé, trial by jury or recognitors was but a- trial by witnesses. Indeed the system of trial by jury was not fully adopted, and the rights and power of jurors defined until the time of Edw. 6, and of Mary.
    
    There was in the early and unimproved ages of the law, say up to the reign of Henry 3, much true legal learning on the subject of exceptions to the assize; that is, other matters than the mere seisin and disseisin, and as to the mode of trying them, the differences between assisa and jurqta,' what matters were properly triable by assize, and what not. .- These exceptions or incidental points in Glanville’s time, and he is supposed to have been Chief" Justice to Henry 2, were generally decided' either by .duel or by summoning other recognitors to try such exceptions or .incidental facts. It was, however, before the close of the reign of Henry 3,' adopted as the rule that the incidental points should be tried by the-same recognitors, not in modum assisse, but in modum juratse, as it were by consent. On the trial it was finally determined as a disseisin or a trespass, according to the nature of the case. In the latter case the assize was turned into a jury. ' This was the rule, it would appear, too, as well in Bracton’s time, as in the reigns of Henry 3, and Edw. 2. ' '
    In the early stages of jurisprudence in England, the only contests arising among the people, for the determination of which the intervention of the courts was necessary, were those in relation to real estates and the possession of them: for of so little importance was personal property considered, that it 'was not until the statute of Westminster’ 3d, that any execution in personal actions was given. This statute gave the writ of fieri facias.
    
    The remedy by assize was fiestinum remedium, no essoin was allowed, no delay permitted. It was the simple remedy of unsophisticated times to restore a party to his rights, whether deprived of them by lawless force, or as a consequence of tortious acts. It lay in all cases of disseisin and re-disseisin. ■ The most common writs of assize were navel disseisin, de marte anticessoris, ultimas presentationis, de nocumento liberi tenementi, and de communse pasturas, and these were all the writs of novel disseisin mentioned by Glanville; and, upon judgment being given for the demandant, a writ of seisin issued to restore the party to his rights.
    In- the reign of Henry 3, the meaning of the term disseisin became enlarged: every wrongful withholding from a man his tenements — -every obstruction of the free use of his freehold to its full extent — putting sheep, or digging upon a man’s land, under claim of an easement, (for if done without claim of right it was a mere trespass,) — the improper use of an easement to which one had a right — distraining for service not due, or where due-exceeding the bounds of a reasonable distress, were all considered disseisins and the subject of assizes. .In short, if-one claimed-to partake with the right owner, or raised an unjust contention against him, it was a disseisin of the freehold.
    Nuisanee being an injury'to the freehold, was considered in the nature of a disseisin, and like it w’as redressed by assize, and the proceeding on it was precisely .the same, (mutatis, mutandis,) as in assize of novel disseisin.- In Glanville’s time no mention is made of any other writ for the redress of injury by a nuisance than assize; but in the time of Henry 3,- we find several writs to the sheriff on questions of nuisance, commanding .the sheriff to hear and determine the plaint, &c. of quare proslavit, ad noc..lib. ten. Quare, fyc. viam obstruxit, fyc. Quare divertit cursum etquse, S¡-c.
    
    Nuisance was so much in the nature of a disseisin, that sometimes it might, be treated either as a nuisance or a disseisin. If a person caused water to overflow, if it rose on the complainant’s own freehold, which it most probably would if he had land on both sides, this was thought rather- a disseisin than a nuisance. But if part was in one and part in the other, and-the water run over both grounds, then for one part he - might have an assize of novel disseisin of freehold, for the other an. assize- of nuisance. So that here would be two assizes on account of the same land. Of the two remedies, however, Bracton advises the assize of nuisance as the most likely to remove the whole mischief, by removing the cause. s ■ .. -
    The statute de consimili casu, Westminster, 2, c. 24, in effect directed the framing of writs for remedy of every wrong; under its provisions, in the 22 Edw. 3, the action of trespass on the case was adopted.
    We have no cases reported until the time of Edw. 2: up to and during the reign of Edw. 1, all the pleas were, viva voce.
    
    The distinction between assisa and jurata was, in effect, abolished by the statutes passed in the reign of Edw. 3, which gave at-taint in all pleas of land against jurors as well as recognitors, which destroyed the reason for the difference: and thenceforth the assize was turned,into a jury as often as they were put to inquire of any matter besides the mere seisin and disseisin,. ...
    The assize could be taken four ways: — 1st, In the point of assize; — 2d. Out of the- point of assize; — -3d. For damages; — 4lh. At large.
    ' 1st, The assize in point was the general issue,, nul tort, nul disseisin. ’ '
    2d. The assize out of the point was where some-special matter was pleaded in bar, showing why the' assize should not be taken, as a release or some foreign fact to be tried in another country.
    3d. The assize taken for damages was where such special matter was found against the tenant, or he confessed the ouster, and the assize was charged only to inquire of the damages.
    4th. The assize taken at large was when, notwithstanding some deed or special matter pleaded, the title and all the,circumstances were sent to be tried by -the recognitors. Taking at .large was the most liberal way of doing justice to the parties. It was breaking through the plea which was designed to stop the, assize being taken; and it was throwing the merits of the question, whether it-depended upon a fact or a title, fairly before the recognitors.
    Mr. Porter referred for these general positions, and this history of the remedy, to 1 Reeves’s History of the English Law, pp. 23, 46, 56, 57, 85, 86; 87, 113, 114, 117, 121, 137, 146, 180, 181, 189, 190, 246,. 262-3, 321, 336, 337, 338, 342, 344. 2 Reeves, 183, 187, 202, 267, 268, 271, 279, 342, 343, 357, 446, 448. 3 Reeves, 22, 23, 24, 25, 28, 29, 89, 113;
    He then proceeded to argue the errors assigned in, the order- in which Mr. Jones had noticed them.
    7th Error. That the court should have quashed the writ for want.of an answer to the second plea, setting forth án indenture.
    , The plea sets forth in substance, that the demandant from the 9th of ¡August, 1793, to the 28th of May, 1808, was seised of the locus in quo.. That the defendant Barnet had erected a dam below Ihrie’s land, whereby' the water of his mill was flooded back oh Ihrie’s land. That Ihrie had brought, a suit for the recovery of damages, and that, for the purpose of putting an fend to all disputes, Ihrie agreed to give, and Barnet to take a lease for permission -to throw back the water, as it was at that time. “ That Ihrie accordingly on the 28th of May, 1828, grants Bar-net the right to swell back the water for one year, and from thence until Ihrie shall give Barnet three months* notice to remove the backwater.’ That the dam in the indenture and in the plaint mentioned, are the same-and not divers; and that so he levied and raised the wall and dam and obstruction without wrong, and by the license and permission of the said Peter Ihrie, as well he might, &c. .’ -
    
      The gist of this plea is, that he did not erect, the wall and dam torliously, but by the license of the plaintiff.-
    Ail that is said about the indenture.is argumentative and mere inducement, and needed no replication. The plaintiff has replied to all the pleadings that the defendant “did erect, levy, and raise this wall and dam of obstruction, wrongfully, and without the license and permission of the said Peter Ihrie the elder, and to the nuisance of the freehold of the said Peter Ihrie the elder, in manner, &c.; and of this he likewise puts himself oft the assize.”
    The assize have passed upon this matter: they have found that Barnet did wrongfully erect the wall, &c., on the 1st of January, 1S06, without the license, &e. of the plaintiff, in the very words of our replication, and expressly negativing the allegations, in substance of the defendant’s plea; so that on the merits, the defendant has had all the advantage o'f his plea, be it good or bad. And it was well replied to. (Stoever v. Weir, 10 Serg. 8, Rawle, 24, 27.) 3 Reeves, 433, 434, 435, 460. 1 Saund. 23, note 5. The plea was bad either, 1st, as a special plea in bar, or 2d, as a plea in abatement.
    1. As a plea in bar: It amounted to nul tort, and therefore bad. 3 Reeves, 431. 5 Booth, 31.3, 314. 1 Bac. Ab. 252. 3 Vin. Ab. Ass. G. a. pl. 8. 10 Serg. & Rawle, 25. 2 Serg. & Rawle, 236, 261. 5 Serg. & Rawle, 544. 2. It was a plea in abatement, or, at all events, a dilatory plea. Booth, 28. 2 Saund. 44, note. As either of those kind of pleas, it should have been verified by affidavit. Rule of court of Northumberland county, title pleading, (No. 8, page, 20.)
    We had a right to treat it as a nullity. If it was either a nullity or irrelevant, we need not reply to it. Hess v. Heble, 6 Serg. & Rawle, 59, 62.
    But in assize, where the defendant pleads to the writ, and over to the assize, no replication to the pleas to the writ:shall be-made, nor shall the demandant demur, but the matter of the plea shall first be inquired. Plowden, 91. Booth, 214, 270. Such was the case here, and the recognitors have inquired, and found the matter pleaded to be untrue.
    Exceptions which would abate other writs, will not abate assizes. Plowden, 91. Booth, 214. Exceptions to the writ are not favoured, Booth, 267.
    
    But the refusal to quash was not error, such as can be remedied in this court. 2 Binn, 249.
    The license was a question of fact for the jury; and, if there had been a license to keep it up after a wrongful erection, it would not have barred the assize. Bro. Ab. Nuisance, pl. 35. And it appears in Livesay v. Gorgas, (Brack. L. M. 449,) that there money was paid for the permission to swell. The nuisance need not be erected with force. 2 Inst. 399.
    As to the 6th error. The refusal to quash for want of answer to the first plea. This was a plea .of non-tenure. Non-tenure is a plea in abatement, 3 Reeves, 459. Booth, 8. It should have beep verified. As a plea in abatement, it is defective, as it does not give a better writ. Stephens, 435. Fleta, 301. Is. the plea of general non-tenure good,.since the statute of Gloucester, which gives damages in assize? And was it ever a good plea in assize of, nuisance? Co. Lit. 363. If tenant plead not'tenure, the demandant may aver his writ, and go on for .damages. But, as said in answer, to the 7th error assigned, the refusal to quash is_ not error. No replication was necessary. The defendant went on to trial, and the recognitors passed on the matter of the plea, and found it against him. tie made no objection to the jury being sworn for want of the cause being at issue.
    10th Error. The insufficiency of the verdict to support the judgment, ’
    1. As to the recognitors not inquiring of the force. The writ of assize sets forth no force. But it is no error if force is not found. 2 Inst. 236, note 5. It was not necessary that they should find that-the injury was committed with force, or without it. 2 Inst. 399, 2 Bulst. 160, 161. In Wentz v.Kline, affipnedin this court, the jury say nothing about the force in their verdict. There is no difference in the consequences resulting from a verdict in assize, whether the injury was done with force or not, at this day. The distinction between ££ capiatur pro fine and in misericordia, &e. is at this day mere form, a distinction without a diffei’ence.
    2d Specification — That the matter of the first plea should have been found at large, divested of all questions of law, as to what was a freehold and what not. The finding is as specific, and as much at large, as the plea. The recognitors have negatived the plea in its own words. All the pleas out of the points of assize, go before the recognitors, 3 Reeves, 23; and their finding, as to the matter alleged against it, in its own words, is sufficient. The question of freehold might be a mixed question of fact and of law, on which it was the province of the recognitors under the direction of the court as to the law, to pass. If the court misdirected as to the law, the party could except to the opinion. •
    The 3d Specification-oí this error’ — That the mátter of the 2d plea should have been specially found, is answered already. None of these pleas ought to have been treated as pleas. They were not verified, and were defective, and the matter of them could be properly tried under mil tort -nul disseisin. If they were not pleas in abatement, they were pleas out of the points of assize, upon-which the recognitors liad a right to pass, and give a general verdict. 3 Reeves, 23, 27, 28.
    ■ 9th Error — That the recognitors were not properly sworn. They were sworn as the recognitors were in Livesay v. Gorgas. The form of that oath was adopted by My.'Lewis, whose character for accuracy, and correct practice, needs no commendation to give ' it weight in this country. His opponent, Mr. Rawle, another veteran at the bar, would have availed himself of the error, if one it was, in a case which was fought inch by inch. The ease of Livesay v. Gorgas, has in all its details, and particularly in this, been followed in practice for 18 years, in a number of, cases which have been mentioned. This decision at Nisi Prius, thus tacitly sanctioned in this court, by rendering judgment on it, and acquiesced in so long, is surely as good authority as to the groper form of the oath, as any of the- old authorities in England, when oaths were different from what they are now. The court will intend nothing against the proceeding. 3 Bulstr. 80.
    The jury laws of this commonwealth do not apply to assizej nor does the oath of jurors prescribed by óur act of assembly. The case of Livesay v. Gorgas was tried after the oath to jurors in common cases was prescribed by our act of assembly.
    As to the objection, that the oath administered does.not embrace the matter of damages, neither does the oath of an ordinary juror, or the oath of an arbitrator, who are sworn “justly and equitably to try all matters in variance submitted to them,” Purd. Dig. 19: not a word is said about making their award; all is embraced in the word try. So here the oath to try the matter of assize meant every thing relative to the assize. The attaint layas well for findings on collateral matters, as on the points of assize.
    15th Error — ^That the count was erroneous in counting for damages. As, under the statute of Gloucester,' damages are recoverable in assize, it is right they should be counted for.’ They were counted for in Livesay v. Gorgas, and, as we claimed to recover damages, that claim should appear on the record,- Wentz v. Kline, It could, at all events, do no harm, even if it were not necessary.
    12th Error — That the judgment should not have been entered nisi, but at large. The judgment nisi is the, Pennsylvania judgment:, it is the judgment which the 'court entered in Livesay v. Gorgas, and the same kind of judgment which has been entered in all subsequent cases. It accords with the loose practice in Pennsylvania, where the docket entries are mere memoranda. It is to be moulded into form, and is genérally recited in form in the execution: it.is the jüdgmént of law, whatever that is, on the finding. .If the defendant wishes to see the judgment in this case reduced to form, it may be found in the execution which has been issued.
    Whatever may be, the decisions -about the necessity of entering judgment in real actions on motion in open, cpurt, they do not apply to this case for two reasons:
    1st. Assize of nuisance is not a real, but a mixed-action. Woodeson, 23. Roberts’s Dig. Whatever might have been its character originally, when by the statute damages were recoverable in it, it ceased to be a real action, and became a mixed one. And, it is from not. attending to this alteration in the law of assize, that judges, in incidentally speaking of the remedy, have called it a real action.
    2nd. If it were necessary that the judgment should entered on motion, the court would,,in. this case, intend from the record, that it was done so, 5 Serg. & Rawle, 166. But, in point of fact, this judgment was rendered on motion, and the record returned shows that fact; for in the opinion of the court below in refusing to quash .the exegution, that fact is explicitly stated to be within the recollection of the court, if it were’ necessary to be so entered.
    4th Error. — That the seisin is not alleged, &c. This is not founded in fact: the plaint follows, mutatis, mutandis, that in Livesay v. Gorgas, and the subsequent cases. It alleges, that on the 1st of January, 1806, the plaintiff was, and still is seised; and being so seised, the defendant, on the day and year aforesaid, unjustly and without judgment, &c. The cause of action is well laid in this manner. In 2 Bulst. 119, and 3 Bulst. 86, the court have decided, that the laying the seisin and the nuisance as we have done it-in this ease, is good. The court will intend it as an allegation of continuity of Seisin, after verdict, more especially a verdict distinctly finding the fact to be'so as in this case.
    1st Error — The refusal to quash the writ, tinder the freeholder’s act.of 1724-5.. That act does not extend to real or mixed actions. ■ The preamble recites, “that the'common law permitteth not the body, in case of debt, to be detained,!’ &c. The act' extends only to process, riot to original writs. -. It gives the form of the two kinds of process to .be used under it; neither of which would answer in an assize of nuisance, which is framed under the' British statutes, and modified to suit any case under the statute in cpnsimili casu. The uniform understanding has been, that the act of 1724-5 extends only to personal actions..
    The old form, ‘‘put by sureties and pledges,”, is preserved in replevin. Graydon, 152. Arch. Forms, 406. So also in the capias in Withernam. After the act of 1724-5 was passed, the common law forms and mode of proceeding, were pursued in ejectment (until it was altered by act of assembly,) — in dower — in partition — in waste, and I may add in an-assize of nuisance, Brack. L. M. 438; in which case a motion to quash the writ was made in the Court of Common Pleas, and overruled.
    The original writ in.assize never was considered a writ of arrest or attachment, Attachment never went until a failure to appear on the third summons; the summons not being the process on the original,writ in assize. 1 Reeves, 114, 117. The attachment or capias, was only awarded by the court, and was issued for the contempt in not obeying the summons at their, discretion. 3 Reeves, 113.
    The record shows, that in executing this assize, the sheriff summoned the defendant; a copy of that summons is contained in the sheriff’s return. There was, therefore, no violation of personal liberty, and it is an attempt to set aside a proceeding on a mere fiction of law. The argument on the other side is a circle; it ends where it begins. If it has any meaning, it denies the existence of the remedy by assize. They say you can only proceed in the ancient manner, pursuing the ancient form; that assize can only be maintained against a freeholder': and, that a freeholder .cannot be proceeded against in the ancient form, because, that form is, technically speaking, an attachment, although riot executed as one.
    But this being the decision of the court below, as to the execution of its own process, they alone are the judges of privileges claimed in their own courts, and their decisions bn those matters are not examinable in error. 2 Yeates, 16. 4 Serg. & Rawle, 150. 8 Serg. & Rawle, 528.
    If it was, there is no evidence that the defendant was one of those persons protected by the acts of 1724-5. The deeds mentioned in the record were not recorded. The certificates as to judgments and mortgages; are not evidence, not being under oath, and not 'stating that there were none, but that on searching'Me indices, the officers did not find any unsatisfied judgments or mortgages.
    2nd Error. — The assize of nuisance is to be varied under, the British statutes in force in this state, according to the circumstances of the case. The statute in consimili casu, Roberts, 157, and the other statutes referred to, expressly say the remedy shall .be extended to cases in which it hath not theretofore lay; that the party shall not go without remedy, but shall have a count to suit his case, and this is a sufficient answer to all the decisions produced about the framing of original writs, their requisites, &c._ But if the defendant did not like our writ.,' he should have demurred to it. Having pleaded to the plaint he cannot now object, after verdict against him, to the writ.’ ■ The writ, however, does, correspond substantially with a variety of those produced.
    5th Error. — We disagree as to the fact. Our plaint alleges that the plaintiff, on, &c. at, &c. was and still is seised in his demesne as of fee, of and in á certain water mill site and two acres and fifty-nine perches of land, situate, &c.-, together with a certain watercourse and stream of water, called the Bushkill creek, running through and along the said land from the said mill site, &c.; and that the defendant unjustly, &c. did'the nuisance thereto complained' of. 1 understand this allegation' to mean that the defendant was seised in his demesne as of fee, of and in a tract of two acres and fifty-nine perches of land, through which the watercourse of the Bushhill creek passed, affording a mill site on the land. This being precisely the case in which all the books agree, that in case of a nuisance by draining the water in the creek by a person below, an assize will iie, it is unnecessary to answer Cases which have no bearing upon this state of facts. It is as much an injury to prevent a man from using a water power, as it is to swell upon his water wheel in use'. The swelling on the land is a nuisance remediable by assize.;
    
      3d Error — This is in fact the only plausible one assigned. The jury acts of 1805 and-1806, apply only to ordinary trials by jury in the Courts of Common Pleas, Oyer and Terminer, Quarter Sessions, Mayor’s Court, and Courts of Nisi Prius, and Circuit Courts, for the trial of issues. They do not extend, to cases in which the judgés sit as justices of assize, as is manifest from the 11th sect, of the act of 1805, (Purd. Dig. 440,) which speaks of i£ where views are allowed.” This cannot apply to assize, because a rule for a view is a preliminary to a view under .the act. But in assize the venire facias is in the original process. The terms of the a.cts of 1805 and 1806 do not embrace “ pleas of assize,” and the common law remedy remains where the act does not expressly or by necessary implication take it away. The cotemporaneous exposition of those acts in the case of Livesay v. Gorgas, shows'that the legislature did .not intend those jury acts,to embrace this remedy. Those acts only embrace issues in civil and criminal cases. Assize is not strictly an issue: it is a mere inquiry, a hypothetical writ. Bob. Dig. 148,
    The terms uall issues,” although general, would not embrace issues of law. The terms of the arbitration law are general, that all suits depending may be arbitrated. Yet it has been held that under it, certiorafis, suits on official bonds, and actions of account render, are not within its provisions.
    The practice in Livesay v.' Gorgas has been followed ever since, for the sheriff to select the jury: there the jury was selected-by the sheriff as at common law: and this court has said the same jury who recognised must try. 2 Binn. 195. The sheriff selects the jury as at common law in cases of inquests of damages on interlocutory judgments; on inquests of condemnation on writs of fieri facias; on writs of partition; on w.rits of inquiry in dower, and in partitions in the Orphans’ Court. So, too, in landlord and tenants’ juries, and in cases of summary proceedings to .obtain possession of property bought at a sheriff’s sale, and in cases of inquisitions of forcible entry, and of lunacy, and under the act relative to habitual drunkards. ■
    But it does not appear by the record that the facts on which the challenge to the array were alleged to be predicated were proved. They are not stated to be admitted, or not denied.. Lil. Ent. 472. This court, therefore, cannot know from the record in what manner the recognitors were selected, and will presume that they were selected-according to the law, as the contrary does not appear. If they were even proved to have been improperly selected, the challenge was not made at the proper time. The challenge to the array is to be made when the- jury are called over to be sworn, and before they are sworn. Arch. Pr. 181, 185. Arch. Forms, 120. Lil. Ent. 345, 472. Here the challenge was made before plea put in. There was no objection to the jury being sworn at the time they were sworn. And a challenge to the array shall not be until issue is joined. Booth, 282, 2S3.
    8th Error. — The matter alleged as error -is contradicted by the record. The judgment quod capiatur assisa was given. The record says, “The plaintiff, by his counsel, prays that the recognitors may be called and sworn to try the matter of assize, which was -granted by the court; and thereupon the recognitors of assize, being severally called,” &c.
    Tiighman, for the defendant in error.
    
      Bi-nney in reply.
   The opinion of the court was delivered by

Gibson, C. J.

Notwithstanding the recognition of the assize off nuisance as an existing remedy in Livesay v. Gorgas, (2 Binn. 192,) it has incidentally been suggested that it is still not too late to discard it. I certainly have not been in favour of reviving obsolete forms, which, from the disuse of them by our forefathers, might well be considered as having been rejected at the settlement of the province. It is, however, too late to make á stand against them now, it having been established, by repeated decisions of this court, that all common law actions which have not been abolished by the legislature, are in force here-precisely ds they are in England; and, although no one is more sensible of the inconvenience of this, of which the case before us is a pregnant instance, yet I would be the last to .-shake what has been as firmly established as a train of decisions by the court in the last resort can establish any thing. If the principle is not to be considered as settled by Livesay v. Gorgas, Lisle v. Richards, (9 Serg. & Rawle, 323,) and Witherow v. Keller, (11 Serg. & Rawle, 271,) we have no certainty for any thing that is not backed by an act of the legislature. This being so, we have nothing left for it but to adapt the action to modern use, by purging it of its subtleties in mere matters of form, without presuming, however, to meddle with essentials. The ground on which it has been recognised is, that it was all along a living remedy, although dormant; and, like the man who awaking from a tranee of twenty years in the Catskill mountains, was so altered that on returning to his- native village his former acquaintances did not know him, the assize of nuisance is to be received with the same modifications in practice which time has impressed on- the forms of our other actions. It would be a sad and sickening task to take it up now just as it was'two hundred years ago,.when the English eourts laid it down, without extending to it the benefits of modern practice, or of the statutes of jeofails, or even our own act of assembly for the amendment of slips in pleading. And this leads to the first of the few errors which I shall notice in detail.

It is alleged that the recognitors ought to have been summoned and sworn, according to the <( Act directing the mode of selecting and returning'jurors.”

If there is any distinctive peculiarity in this action, it is in the mode of trial. The act of assembly is inapplicable fo it, because' the recognitors are not jurors; nor are their duties analagóus to those of jurors. In the course of the proceedings, issues may'be joined on points collateral to the issue, and these they are incompetent to try, unless where they are sworn as a jury pro hdc vice, or the issue is ordered to be taken at large; in. the absence.of which a-jury, properly so called, must be empanneled. They are not summoned fora single term, but attend the .cause from its inception to its termination; and this they must necessarily do, as they are to have the view before the return of the writ. They .are in. fact an inquest, the proceeding being festinum remedium, and their finding not a verdict, but an inquisition: so that-as well might the com-, purgators of a defendant who wages his law in debt on simple contract, (which has been done in Pennsylvania,) or a jury impannelled pursuant to a writ, to make partition, be selected according to the act, and sworn as it directs, to try the issue,-although there be no issue to try. To swear the recognitors who may find on their own view, to find according to the evidence, would, introduce a fundamental alteration in the nature of their duties, unless it were understood that they should swear to one thing .and do another; and can any one think the legislature had such an alteration in view. They were not legislating on the subject of the assize of nuisance; for, the truth is, no one ■ suspected that there was any such thing in existence; and to apply the provisions of the act to it, would, it seems to me, carry the construction beyond the spirit and the letter, and introduce confusion and substantial inconvenience into the proceedings. Beside, we have cotemporaneous exposition sanctioned by this court.in Livesayv. Gorgas; which, as it has produced no particular mischief, ought itself to be decisive.

In this action the proceedings are the same as in an assize of Novel Disseisin; and a variety of exceptions have been taken in the casé at bar, which doubtless would have prevailed in the time when Fleta was written. It. is urged, that the court should have quashed the writ for want of an answer to the first and second special pleas. As the pleadings were clearly defective in this respect, there certainly was a time when courts - would have done so. But so early as the reign of Edward the Third, it came to be the practice in cases like the present and some others, to put the whole case before the recognitors without regard to the pleadings. “ The taking of an assize at large” says Mr. Reeve in. his history of the English law [Vol. 3, p. 23,) was considered as the most liberal mode of .doing justice betwéen the parties; it was. breaking through the plea which was designed to stop the assize being taken, and it was throwing the merits of'the question, whether it depended on a fact ora title, fairly before the recognitors.” And again; An assize would be taken at large on a defect in the pleadings; for as the direct point in the proceeding ought to go to the assize, if what was pleaded in order to .prevent the assize, by throwing the question upon another, fact, failed to do so, the result was that the assize should pass. Thus it was laid down as a rule,, that where abar was pleaded, and the plaintiff, in reply, made out his own title without traversing the bar, and the tenant omitted to rejoin to the title, the assize should, not be taken on .the title, but at large.” Thus wé have, as an instance, the very case under consideration; and, as such proceeding'was not irregular in the time of Edward the Third, it is in vaiu to look for more technical strictness now. Here the assise was substantially taken at large, by putting the whole, case before the recognitors; and the exception cannot prevail.

But it is urged that judgment quod capiatur assisa was not en- _ tered. It certainly was not entered in form, although the substance of it was preserved in having the assize actually taken. This judgment is proper after issue has been joined on the point of assize, and after special pleas in bar of taking the assize, (if there are any,) have been disposed.of; and' it is therefore in the nature of a rule'for trial after joinder of issue .in a modern action. Until of late, it was the practice to enter such a-rule in this state; as it was absolutely nécéssary at the common law. But would a court of error have reversed for want of it on the,ground of there having been a mistrial ? To have done so would'have brought a scandal on the law; and it would reflect as little credit on the administration of justice, to reverse for the same cause here.

These are the exceptions on which the plaintiff in error has mainly relied, and we think they ought not to prevail. There are others of less note, which we are of opinion are worthy of still less consideration; and on which, being purely technical, it is deemed unnecessary to bestow a particular consideration.

Huston, J.

This was an assize of nuisance brought by Peter Ihrie against William Barnet, in which the plaintiff recovered a verdict and judgment, and on which judgment an execution issued, under which a mill -dam, was prostrated, within the borough of Easton, in Northamptoncouniy.. , ’

The proceeding is novel, the effect striking; and, whatever may be said of summary justice and effectual redress, yet the one and the other may be attained in a manner w'Kicb will excite inquiry, and, perhaps, occasion some alarm. This country had been settled more than a century, and all the citizens, and all the lawyers, and all the'courts had progressed under certain notions of right, and certain remedies for wrongs, which, if not the very best, yet were so far good and effectual, as that the country prospered greatly, and there was, at least, no general complaint for want of redress of injuries, or of insecurity of rights. Our aficestprs had removed from England-, -England had once been in a state of barbarism — ■ had, at one time, not much law except that of force, and not much right except that depending on power. . In progressing from this state to its present situation, the change was gradual. The first improvements gave place to further.improvement, until it has attained to such certainty and security in all the different departments of rights and remedies, as had not been exceeded in any other country. - . •

When our ancestors emigrated, it had, in this respect, attained nearly to .its present state; and much of the remedy, and many of the customs and forms of the thirteenth century, had become obsolete, and their place supplied by others better fitted to the present state, and more consonant to sound' principles and civilized manners. As colonists, the law of the mother country, to a certain extent, was brought here. But was it the law as then understood and practised, or what was. no longer law there, but what had been rejected, and hadbecorpe obsolete? Did we bring the existing forms of action, or those which on trial had been disapproved of and changed, those after the Norman conquest, or those of the present century.

The original settlers of this country, and their successors for more than a century, had no doubt on this subject. No one thought of going to the times of Edward and Richard for correct views of the rights or remedies necessary for more enlightened times. Trial by battel and attaints.and assize were equally unknown. We must .now decide whether they are to remain so, or are to be dug from the rubbish in which they had been forgotten, and introduced to our courts, and forced on our citizens, till again experience sends them back to obscuritj’’. The only difficulty, or, at least, the greatest which meets us is the fact, that in 1809, there was an assize of nuisance tried' in this county, and about the same time the judges, as is supposed, reported that several acts'of parliament prescribing the forms, &c,, of assize, were in force. As to the trial, let those who choose read it, and those who wish for .such another, say so. -,

As to .the report of the judges, it is not so explicit as could have been wished. Their notes to several statutes “ to be incorporated,” and this statute, or certain sections of it, are in force,” leaves an uncertainty as to what is x’eally meant in each case. I shall show that the words “ to be incorporated” did not mean as they do not purport to mean, that the statute has ever been - in use in this country, • '

I think no one will say, that an appeal of murder or felony was ever in Use .in Pennsylvania, or .that if can be, since the present constitution; yet four statutes, (the last in 1300,) are mentioned, and.have the note {Cto be incorporated” added to them; and if incorporated, we may see a trial by battel, for it is as much a part of the law as the'appeal.

The punishment of a juror that is ambitexter and taketh money, and two other statutes, all in the reign of Edward 3d, empower the court, in which the cause is tried, (or the justices before whom he did swear) to put him to trial without delay; to put him to' plead to the country and take the inquest presently; and if he be attainted,to fine, imprison, &c. Now the trial may,be in the Court of Common Pleas, and the constitution requires an indictment, &c.

In Jourdan v. Jourdan, 9 Serg. & Rawle, Chief Justice Tilghman says, “ voucher is unknown, unless in a common recovery.” This is not now an action; .yet, half-a dozen statutes regulating voucher are put in the list, and marked to be incorporated” in one of which, trial by battel is expressly recognised. I stop here for the present, there is no end-to this inquiry, but the .end of the book.

“ To be incorporated” does not mean that the statute is in force. I have said thus much, not to censure the judges who made that report, for no man respects more than I do some of them, both as men and as judges; but to show that it is, and must be a mistake to say, or suppose they thought, or meant those statutes to be now in force. . In their report they say, “In perusing the statutes referred to in the report, the legislature will perceive, that in many of them, the language is upcouth, and unsuited to our present form of government;” and again; “ there is no other way of curing these defects than by re-enacting the substance of .these statutes in language suitable to our present condition,, &c.;” and I will add with great deference, that neither rights or remedies are treated in some of them, in a manner at all consistent with the general sentiment, or with the spirit of our own laws and constitution.

Several statutes relating to, and some of them minutely directing the proceedings in assize, are reported:.and the present case brings the subject before the court for its consideration. I admit, that of this action, I know little; of that little, I-dislike every part. The assize fell into disuse in England 'so long.ago, and the cases and the books would seem to show such variety in the courts, and in the proceedings, that I must conclude, that many things relating to it were in a state of change, and very few were settled and certain, when it was abandoned; I shall mention some matters of which there seems to be no doubt. '

And first, if the recognitors could not. agree, the assize was afforced or forced by adding others, until twelve were either for demandant or tenant. Whether these new jurors .heard the evidence I cannot learn. ■ -

Next, although the sheriff returned, that defendant was not found in his bailiwick, and had no goods by which he could be attached, yet shall the assize be taken, 3 Vin. 197, F. N. B. 410; and this is so well settled, that in a statute which I shall cite presently an enactment is made expressly on this ground, and prescribing a remedy. If defendant do appear, he cannot plead that the plaintiff has enfeoffed .another, who is in full life, or that a feme plaintiff is a married woman. He may plead a release from the plaintiff of all actions personal, which is in bar of damages; but he cannot plead a release of the right, or any plea in extinguishment of the plaintiff ’s right,’ 3 Vin. 219, 220: it seems he is confined to the plea of nul disseisin. If the defendant appears by bailiff, he cannot plead any special plea, except what is nul tenant, nul disseisin, nor any plea on which a certificate of assize lies.

The assize might be brought before the Court of Common . Pleas or King’s Bench, if either was in the county where the lands lay. The judges .of these courts have authority without a patent, but generally, a, patent issued to certain persons named, either, to take all assizes in that county, or to take a particular case, and it would seem, these persons were named by the plaintiff. F. N, B. 409, et seq.; and in all cases, the certificate may be before other justices than those whoto.ok the assize, if the party’suing it wishes. F. N. B. 425.

But the statute 13 Ed. 1, c. 25, among other things enacts, that if exception be alleged by a bailiff, the taking the assize shall not be delayed therefor, nor the judgment upon the restitution of lands and damages: but, if the. master of such bailiff, that .was absent, come after, before .the same justices that took the assize, and offer to prove by record or rolls, that at another time an assize passed between the same parties of the same land,, or that the plaintiff at another time did withdraw his suit in a like writ,-or that a plea liangeth by a writ of more high nature; a writ of venire facias shall be granted unto him to cause the same record to be brought, and when he hath the same, and the justices do perceive that the said record shown by him would have been available before the judgment, that the plaintiff by force -of the same would have been barred of his action, the justices shall presently .cause the party to be warned, that, first recovered, that he appear at a certain day, at which the defendant shall have again his seisin and. damages, (if he before paid any .by the first judgment, given,) which shall be restored to him to the double, as is before said. And, also, he that first recovered shall be punished by imprisonment, according to the discretion of the justices. Now rpmember it is settled, that if the bailiff offered to show all or any of these things to the suit of assize, he will not be permitted; because his master may have this -remedy and recover again. The statute then adds, in the same manner, if the defendant, against whom the assize passed in his absence, show any deeds or releases, upon the making whereof the jury were not examined, nor could be examined, because there was no mention made of them in pleading, and 'by probability might be ignorant of the making of those writings, the justices upon the sight of those writings shall cause the party to be warned that recovered, that he appear at a certain day, and shall cause the jurors of the same assize to come; and if he shall verify those writings to be true by the verdict of the jury or by enrolment, he that purchased the assize contrary to his own deed shall be punished by the pain aforesaid. Now, this re-examination was on what was called a certificate of assize, and was> before those who took the first assize, or before others — if the party su.ing it so willed. And a new patent of assize and a certificate issued to the sheriff, (see the forms of those writs, F. N. B. 421, et seq.) There was, also, another certificate, where the verdict was not well examined by the justices when'they took the verdict; or when they have not well examined or fully inquired of the issue joined, &c. Now, this re-examination ivas as well known, and in as constant use as the assize. It was prescribed by the statute; but it did not In practice depend on the will of those who took the assize. The party injured could obtain the writ and the hearing. " What mode shall we adopt to obtain it here, or are we to.have it here? Are we to have only half and the worst half of the proceeding, or the whole? And is that whole consistent with our system of government and judiciary?

If it shall be said, that'the absurdities and injustice of refusing a defence to-day and receiving it to-morrow; or of trying and deciding the cause of a man never summoned, and pulling down his house, &c., and then giving him a new trial, and fining and imprisoning the plaintiff, would not be adopted here, the answer is — then state what will be adopted and what rejected, and prescribe new forms and new rules.' But this will make it not the old assize, but a new kind of action, which I doubt our power to prescribe. As it is, it is, from all I can learn of it, unfit for use: it has not been used, and in my opinion cannot, until enacted by our own legislature. ■ ■

If it is said it has been decided in Livesay v. Gorgas that this remedy is in force; my reply is, it was not so decided. The whole opinion leans the other way; it only decides that if the action lay, it could be removed from the Court of Common Pleas to the Circuit'Court: and, to prevent mistakes and leave' the matter open, the Chief Justice expressly says that was the only point made, and the only one decided.

But so far as that case goes, it proves that if the remedy exist, it is an action, and not a mere inquest. An inquest never was removed or removable after it was begun, and before finding, from the Court of Common Pleas to the Circuit Court.

If it is an action, there was error in not quashing, because a capias and not a summons issued against the defendant; who was1 proved and admitted to be a freeholder. The act is peremptory; we have no power to dispense with or repeal it. If it is an action, the exception to the jury was fatal. ’ ,

By our acts of assembly jurors are .to try all actions in court, must be selected, put in the wheel, drawn and' Summoned in a particulár manner. These acts bind all our courts, and apply to all cases. It will not do to say this is not an action, but an inquest: it is an action, or it is nothing. Who has heard or read of a writ, a narr., a plea in abatement, in bar, &c., in an inquest of,office, or of a plaintiff being nonsuited for not declaring? It is true the old books call these jurors recognitors; but the statute above cited, though not a modern one, calls them the jury. The law which says the assize may be brought and tried in the King’s Bench and the Court of Common Pleas, says so. It has all'the distinguishing characteristics of an action, and not one of an inquest. There was error in deciding that the plaintiff need not reply to the. release pleaded, by the defendant. It is true that it may happen that a plea is put in, requiring a replication, and this may be forgotten or overlooked, and the court may, after trial on the merits,).refuse to reverse on this ground. But it is not true that any court- can compel a. party who has pleaded to proceed to trial, and to try the cause until his plea is answered; unless, perhaps, in. the case where the plea is palpably fictitious and impertinent. This was not so. I do not say positively that it was a bar to the assize, though - I incline to think it was in reason and in law, but it was at least a bar to the recovery of damages. Where the defendant pleads in bar, and gives colour to the plaintiff, a replication is necessary; it is necessary in all cases where it doés not amount to the general issue: though it need not generally be set out at' large. 16 Vin. 230, title Assize, (y. a. and B.) Replication. That the plea was a good bar to the assize, see 16 Fin. Assize G. a. and Pleas in Bar, 12. Note per Littleton and Favasor, that it was held by all the judges in England, that a lease for years, the reversion in the plaintiff, was a good bar in assize,” and the-rest of that page. And I have not been able to find any decision to .the contrary.

There are other parts of this record to which.I cannot reconcile my ideas of law or of justice: but I pass, them over. I feel that in the opinion now delivered I ,shall be supposed to differ from men now gone; and for whom I felt more than ordinary respect; but I also suppose that the- general opinion, that the statutes included in their'report by the judges, • were believed by them to have been,'and to be now in force; is doing them great injustice. I know that some of them expected an act of assembly to follow that report; and that it was rather the principle of the statute than' the statute itself of which they approved and which they wished.to be incorporated. We have in point more than one expression of our late Chief Justice, that he did not know why particular statutes, not reported, were omitted: and have heard him state more than once his doubts of the propriety of others being included. And I feel confident, that where either the provisions of one of our acts of assembly, or the spirit and principle of our constitution is infringed by the words or the scope of - an old statute, or the forms of an antiquated action, it was not intended or expected they would or could be revived, except by the legislature. I'also differ from the rest of the court; but.I cannot believe that our statutes of limitation, which were supposed to embrace every case, can be evaded by the introduction of antiquated and forgotten forms of action; or that our system of jury trial, so carefully and so repeatedly revised, shall be rendered useless; or that the privilege of freeholders, so long and so constantly protected; our acts of arbitration, and several parts of our constitution, are all to yield to a form of action, of the'good effects of -which we only know that on trial it was suffered to fall into disuse; of particular parts of which we know that they contradict our general notions of rights and remedies — and of the whole of which I confess myself to be so ignorant, that Í dread the labour it must cost me to form any correct opinion. '

Judgment affirmed.  