writ of right, and therefore ſubject to greater delays[1]. This is a writ commanding the defendant to permit the plaintiff to abate, quod permittat proſternere, the nuſance complained; and, unleſs he ſo permits, to ſummon him to appear in court, and ſhew cauſe why he will not[2]. And this writ lies as well for the alienee of the party firſt injured, as againſt the alienee of the party firſt injuring; as hath been determined by all the judges[3]. And the plaintiff ſhall have judgment herein to abate the nuſance, and to recover damages againſt the defendant.
Both theſe actions, of aſſiſe of nuſance, and of quod permittat proſternere, are now out of uſe, and have given way to the action on the caſe; in which, as was before obſerved, no judgment can be had to abate the nuſance, but only to recover damages. Yet, as therein it is not neceſſary that the freehold ſhould be in the plaintiff and defendant respectively, as it muſt be in theſe real actions, but it is maintainable by one that hath poſſeſſion only, againſt another that hath like poſſeſſion, the proceſs is therefore eaſier: and the effect will be much the ſame, unleſs a man has a very obſtinate as well as an ill-natured neighbour; who had rather continue to pay damages, than remove his nuſance. For in ſuch caſe, recourſe muſt at laſt be had to the old and ſure remedies, which will effectually conquer the defendant’s perverſeneſs, by ſending the ſheriff with his poſſe comitatus, or power of the county, to level it.
