Waggoner v. Jermaine.

as against the aliance of the party first injuring. Both these actions of assize of nuisance and of quod permittat prosternere, were out of use and had given way to the action on the case, and were finally abolished by statute, 3 and 4 Wm. 4, ch. 27, 36. (See 3 Black. Com. 221; 2 Tomlin's Law Dict. tit. Nuisance, 2, 4; 3 id. tit. Quod permittat prosternere.) The common law remedy by writ of nuisance subject to certai provisions is retained by our statute. (2 R. S. 332.) It is there provided that the plaintiff may sue in one action the party erecting a nuisance and him to whom the land on which it is raised has been transferred or aliened.

The remaining case examined by the court, in Blunt v. Aikin, (Cheetham v. Hampson,) it seems to me is not very analogous to this. That was an action on the case against the defendant who was owner of the fee, for not repairing the fences of a close whereby the plaintiff was damaged. Another person was in possession of the premises. It was objected that the action could only lie against the actual occupier. Lord Kenyon, Ch. J. said, it is clear that this action cannot be supported against the owner of the inheritance, when it is in the possession of another person. It is so notoriously the duty of the actual occupier to repair the fences, and so little the duty of the landlord that, without any agreement to that effect, the landlord may maintain an action against his tenant for not so doing, upon the ground of the injury done to the inheritance; and deplorable indeed would be the situation of landlords, if they were liable to be harassed with actions for the culpable neglect of their. tenants. Buller, J. said, that with respect to the case of Rosewell v. Prior, (2 Salk. 460,) which was the only one cited where the action was maintained against the owner out of possession, it was very distinguishable; for there the defendant let the premises with the nuisance upon them, which had been before erected; and he remarks, that the court relied upon the fact that he had been guilty of the misfeasance, and affirmed the continuance of the nuisance, which might be said to be a con tinuance by himself. Payne v. Rogers, (2 H. Black. 350,) was an action on the case against the owner of a house in the

Waggoner v. Jermaine.

occupation of his tenant, for an injury sustained by the plaintiff in consequence of the want of certain repairs upon the premises. The defendant, the owner and landlord, was held liable on the ground that by an agreement between him and his tenant, he was bound to repair.

In Blunt v. Aikin, I repeat, the case did not show the relation in respect to the premises, which existed between the defendant, the former owner, and the occupiers, at the time of the injury sustained by the plaintiff. In the absence of such -roof, it was very properly held that the law presumed the occupiers in possession as owners. It was not held that the law presumed, as it clearly did not, that the former owner was under a covenant to uphold their possession. The furthest then that the case goes is, that when the defendant had conveyed the lands on which the nuisance had been placed by him and surrendered the possession to his grantee before the time when the plaintiff acquired title or possession of the lands subsequently injured, without any covenant of warranty or agreement to uphold the grantee in the occupancy of the premises, that the action would not lie against such former owner and erector of the nuisance. The principle, however, is recognized and sanctioned by the reasoning in that case, that where the defendant is out of possession at the time the injury was committed, and another person has the entire possession, if he was the erector of the nuisance and owner of the premises, and under some agreement with the possessor by which he was bound to uphold him in possession, the action would well lie against him on the ground that he, by such relation with the occupier, had affirmed the continuance of the nuisance; that it might be said to be a continuance by himself.

I am unable to see any reason why the same principle does not with as much force apply to sustain the action against the defendant in this case. He erected the nuisance, for many years continued the enjoyment, and then conveyed and surrendered the possession of the premises to another, with covenants of warranty for quiet enjoyment, and the right to flow as far as had been theretofore necessary for the use of the mills on the

Waggoner v. Jermaine.

premises, by the dam thereon at its then height. I think that the defendant's covenants, contained in his deed to Sloan, are at least as strong and clear an affirmance of the nuisance in the possession and enjoyment of his grantee, as such affirmance was shown in either of the cases referred to, and upon that ground I am of opinion that there was no error in the charge of the judge as to the defendant's liability, notwithstanding his conveyance and surrendering possession to his grantee in 1836. This principle is illustrated and sustained, in addition to the cases already referred to, by Staple v. Spring, (10 Mass. Rep. 72, 77;) Angell on Watercourses, 152, and the cases there cited.

There was no error in not limiting the recovery to damages sustained within six years prior to the commencement of the suit. The statute of limitations was not pleaded. If it had been, the defendant might have availed himself of that defence. (2 R. S. 296, § 18, sub. 7.) The case of Baldwin v. Calkins, (10 Wend. 171,) was not intended to intimate any other rule, where a suit is commenced for such a cause of action and the statute is not pleaded.(a)

My conclusion is that no error was committed by the judge on the trial of the cause.

New trial denied.

(a) The only exception to the rule requiring the statute of limitations to be pleaded, is in the case of penal actions, in which it seems to be well settled that the plaintiff must show the suit commenced within the time limited for bringing the action. (2 Saund. 66, note (3); 1 Chit. Pl. ed. 1837, p. 517, note・ Wilkinson on Låmitations, 104.)

Henderson v. Henderson.

HENDERSON, Survivor, &c. vs. HENDERSON and another.

The presumption of payment, allowed as a defence to actions on judgments and sealed instruments, by 2 R. S 301, §§ 46, 48, must be pleaded as payment. The affidavit accompanying such a plea, required by rule 99, instead of stating it to be true in substance &c., may set out the facts which raise the presumption and negative those which would repel it.

A plea in such a case that the right of action accrued more than twenty years be fore the commencement of the suit is bad.

DEBT on a judgment in this court of May term, 1823, for $6790,26. Plea, that the right of action of the plaintiff upon the said judgment accrued more than twenty years before the commencement of this suit, to wit, on the 9th day of July, 1823, concluding with a verification. Demurrer and joinder.

G. R. J. Bowdoin, for the plaintiff, said the plea should have been payment. (2 R. S. 301, §; 46, 48.)

D. D. Field, for the defendants. We could not plead payment, because the defendants could not make the affidavit of the truth of the plea required by the 99th rule of the court. And besides, the plea is a good one. On the facts pleaded the statute raises a conclusive presumption of payment.

By the Court, BRONSON, Ch. J. It is not a conclusive, but only a prima facie presumption, which may be repelled by proof of payment of some part of the debt, or a written acknowledgment of a right of action within twenty years. (48.) The statute has not altered the form of pleading. The plea should be payment, upon which issue should be joined. Under that issue the defendant may show actual payment, or lapse of time as a ground for presuming payment. swer to the presumption, the plaintiff may show a partial payment, or a written acknowledgment of a right of action within twenty years.

rely on the And in an

If the defendant cannot, with a good conscience, make an

Delamater v. Pierce.

affidavit of the truth of the plea in the words of the 99th rule, he may swear to the facts which show the plea to be true, to wit, that the judgment was recovered more than twenty years before the commencement of the suit, and that he has made no payment, nor given any written acknowledgment of a right of action on the judgment, within twenty years.

Judgment for the plaintiff.

DELAMATER vs. PIERCE.

Proof that the defendant on being shown the plaintiff's account said, "it is correct, but I have an offset," is sufficient to warrant a recovery for the amount of the account.

ERROR to the Columbia C. P. to review a judgment of that court reversing on certiorari a judgment in favor of Delamater against Pierce, rendered before a justice of the peace. The action before the justice was assumpsit to recover $84,12, as the balance of accounts between the parties. The plaintiff's account, containing items on both sides and showing the above mentioned balance to be due him, had been rendered to the defendant, who afterwards came to the plaintiff's office and was shown the book from which it was taken, and in a conversation with the plaintiff's clerk, said, (as the clerk testified,) that the account was correct, "but he had an offset." Upon this testimony the justice rendered a judgment for the plaintiff for the $84,12.

C. L. Monell, for the plaintiff in error.

R. E. Andrews, for the defendant in error.

By the Court, BEARDSLEY, J. No doubt the full statement of a party, when his confession is resorted to as evidence against him, must be received, although it does not follow that every