case tenant against Goldwin in a action on the case bring by a lessee for year  against the owner of the adjoin house for not repair a party wall by which the  plaintiff house be damage it be not necessary to state that he be bind by  prescription to repair the modern er p wall it be sufficient to declare that  he be possess of a message for a certain number of year and that the defendant  ought to repair the wall c SC salk SC holt SC ld ray SC ray Ent action on the  case the plaintiff declare that on such a day and year he be possess and yet  be possess of a message situate in such a place for a certain number of year  vet not end and also of a cellar parcel thereof which say cellar lie and all  the aforesaid message do lie contiguous to the message of the defendant in the  parish aforesaid and from a vault parcel of the defendant message be wont to  be separate by a strong thick wall which to the message of the defendant do  belong and by the defendant for all the time aforesaid ought to be repair but  that the defendant to contrive skilfully c though often request to repair the  say wall so negligent keep it in repair that for default of care in he and  repair of the same the filth of the say vault by the decay and breach of the  say wall in the say cellar do flow and fill the same for such a time by which  the plaintiff lose the use of his cellar c the whole question be whether the  declaration be good to entitle the plaintiff to this action because as be  object it be to put a charge upon the defendant which can not be but by  prescription and none be lie here nor be it say the message be modern a  ancient message capable of a prescription but in maintenance of the  declaration and that it be well be for a tort to his possession be quote the  case of sand v trefusis cro car a and the case of Winford v woollaston lev b  the last of which be for stop a way which the plaintiff to have to derive  enjoyment from et in order that to withhold over the defendant meadow without  make any title to the way but mere upon the possession and it be hold that it  will be good upon demurrer and per a certain upon a special demurrer and be so  much the strong for that it be a charge against common right there be  difference between charge a wrongdoer and the tenant of the land in which one  will lie the charge beside the law have respect to the nature of the charge as  whether it arise by the act of the party or by act in law as in assize for a  rend charge against the tenant of the land the plaintiff must show his title  otherwise it be in case of assize for rend service and the reason of the  difference be because one be of common right and the other notyearbook Henry  pl Henry pl a so in a assize of common in gross there must be a title make to  the plaintiff by it be of a common appendant because it be by act in law and  though it may be by prescription yet that be but subsequent evidence and not  the cause and foundation of it if the hundred be indict for not keep the  highway in repair it need not be say how it be Chargeable but if it be against  a particular person it be otherwise so here if this action be not for repair  another man house or such a highway there will be reason that the plaintiff  must show a title and a special reason of the charge because it will be to  impose a charge upon he against common right but here it be to repair his own  house which of common right he be bind to do and every body by law be so far  bind to repair his house that through want thereof another be not prejudice at  commonlaw if there be two jointtenants of a house and it want repair a writ de  reparation to make will lie for the one against the other so if the house of  one be likely to fall to the prejudice of another man house a writ de house to  get again will lie and it be no matter whether it be a ancient house or a new  one but if the one be a old ruinous house and a new house be build near it  will not lie because the word debet in the writ will exclude he and the word  to use in the writ may be leave out register b Inst more   b if a lessee for  year build a house it be waste and to let it fall be a new waste Keilway c it  be hold on debate that if one man have the upper room of a house and another  have the foundation and low room and the upper room be out of repair the owner  of the low room have a action against he who have the upper room and so it  shall be vice line for nonrepair of the foundation modern er p and we say the  wall to use to get again which word be as strong as to become used and take  away all intendment or doubt that it be a new house so be the case of palmer v  Hebblethwaite Mod d and the case of roswell v PryorAnte e be after verdict and  will otherwise have be ill modern one be cut down his hedge and it fall upon  the plaintiff ground it be no good plea to say that it fall against his will  but the defendant ought to show that he do what he can to hinder it and that  he remove it with all speed vide yearbook Edward Fitzherbert Abr trespass f  against this be quote the case of saint John v moody vent g if a assize be for  rend against a terretenant the plaintiff be compellable to make a title  otherwise if it be bring against the pernor of the rend if one nail board to  my window I need not in a action for the same show my title but if a man who  have ground close to my house in assert his right build in my light there I  must show my right to have a action against he for it upon which reason be the  case of dent v OliverCro James a for hinder the plaintiff from take toll in  his fair without show any title to it good because against a wrongdoer holt  chief justice the case of sand v trefusis cro car b be not like this for there  the to use go to the to run which be the thing complain of and to use be of a  uncertain signification and proper go to repeat act and it be say the wall to  use to get again and yet it be a permanent thing and therefore it be very  improper to say a permanent thing to use and he allow that former and still  there be a difference between charge a wrongdoer and the tenant of the land  for to charge a terretenant one must make title by grant or prescription but  none need be make against a wrongdoer and former it be think necessary to  maintain case against a terretenant for stop a way to show title but the  contrary have be hold since stride v Birt Mod c and that as well on demurrer  as after verdict but I know no case where one put a charge upon another except  it be of common right but he ought to show title as in case of repair one  house but if I have a house of office in my ground wall and no cellar be  contiguous to it and another dig a cellar close to my wall which stand well  until you have dig your cellar it seem hard to bring a great charge upon I by  his dig his cellar contiguous to my wall whereby my wall be in its nature  become weak suppose one man have a house and a cellar contiguous to it and one  wall serve for both and be sell the cellar who shall repair the wall or  suppose this cellar be make after the vault and the wall thereof for the one  party make a wall shall not take away the owner of the contiguous soil liberty  of dig a cellar but such dig ought not to bring a great charge upon the other  gold justice most certain there be a great many case that if a man declare  that he ought to have common c and it be against the terretenant or the owner  of the soil there ought to be a title make vent d but Iatter case have go  otherwiseMatthew v baker and Plottney v slaughter Hilary term will mary roll e  and here it be say he ought to repair and that word ought will bring the  matter in evidence the difference be between a declaration and a plea in bar  vent see rider v smith Trinity term Geo where per buller justice the  distinction be between case where the plaintiff lie a charge upon the right of  the defendant and where the defendant himself prescribe in right of his own  estate in the former case the plaintiff be presume to be ignorant of the  defendant estate and can therefore plead it but in the Iatter the defendant  know his own estate in right of which he claim a privilege must set it forth  term Rep f modern and at another day per totan curian the declaration be good  for there be a sufficient cause of action appear in it but not upon the word  to use if the defendant have a house of office enclose with a wall which be  his he be of common right bind to use it so as not to annoy another there be a  great diversity between a prescription to put a charge upon a man to repair  his fence and to excuse one from modern er p a trespass for such charge must  be by prescription but the reason here be that one must use his own so as  thereby not to hurt another and as of common right one be bind to keep his  cattle from trespass on his neighbour so be be bind to use any thing that be  his so as not to hurt another by such user if a man have two house one of  which have a house of office that be keep in by the wall of the same house  from a cellar in the other and he sell the house to which the house of office  belong the buyer be to keep it in good repair so as not to prejudice the  vendor house for be be so to use it as not to hurt another suppose one sell a  piece of pasture lie open to another piece of pasture which the vendor have  the vendee be bind to keep his cattle from run into the vendor piece so of  dung or any thing else if a man erect a house of office to which there be  contiguous a vacant piece of ground which be his and by which the house of  office be keep in there if be sell the vacant ground and the vendee dig a  cellar in it as be may do there be must defend his cellar against the house of  office if a man build next to a vacant piece of ground of his own and then  sell the new house keep the ground in his own hand he can build upon the waste  ground so as to stop the light of the house for by sale of the house all the  light and all necessary to make they useful pass for by sale of the house all  the convenience it have will pass and as he himself can build to the prejudice  of the new house so sell so can the vendee of the vacant ground do it but if  in that case be bad sell the vacant ground without reserve the benefit of the  light the court doubt in that case that vendee may build so as to stop the  light of the vendor because he part with the ground without reserve the  benefit of the light for that case differ from that of palmer v flechier and  they say they doubt of the case in Keilw where it be hold that the owner of  the low room in a house be bind to repair the foundation there be indeed a  writ in nat narrow places to a mayor to command he that have the low room to  repair the foundation and he that have a garret to repair the roof but that be  ground upon a custom and the declaration will be better to say only that the  wall and house of office be the defendant and that through default of he the  filth run into your cellar and by the whole court judgement be unanimous give  for the plaintiff modern er p modern report volume modern report or select  case adjudge in the court of king bench chancery common plead and exchequer  volume the seven contain a collection of case argue and adjudge in the court  of king bench at Westminster in the reign of queen whether during the time sir  John holt knight be chief justice of the court take by thomas FARRESLEY of the  middletemple Esq to which be now add a collection of case argue and determine  in the court of king bench common plea and chancery from easter term in the  six year of george the second to Michaelmas term the eighteenth of george the  second the five edition correct by thomas leech Esq of the middle temple  barrister at law easter term the first of queen whether in the queen bench sir  John holt Knt chief justice sir Littleton powys Knt sir Henry gold Knt justice  Edward Northey Esq attorneygeneral Simon Harcourt Esq solicitor general