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away his dominion by the power of disposition he Timber has over personal property so long before he has be felled.

directed to it over real estate. The court, therefore, with reference to his situation, even during infancy, as to his powers over property, works the change not to all intents and purposes, but with this qualification, that if he lives he may take it as real estate ; but without prejudice to his right over it during infancy as personal property.

“A lunatic stands quite on a different footing, as the instant of a lucid interval he has precisely the same powers of disposition over one species of property as over the other, in different modes and forms I admit. The Lord Chancellor, acting under a special commission from the crown, does what is for his benefit; taking the advice and assistance of the presumptive next of kin and heir, as to the management of the property that may or may not be their own.”

His Lordship in that case mentioned an instance of a lunatic seised ex-parte paternå of estate A. and ex-parte maternå of estate B. the latter being subject to a mortgage; and timber cut upon A. having been applied in discharge of a mortgage upon B. it was on a question between the heirs held, that A. was not to be recouped.

Timber directed to be felled.

CHAPTER XI.

'Injunctions to stay Purprestures and Nuisances.

Distinct betwee estates infants lunatic

De jurisdiction of Courts of Equity in cases of Purpresture and Nuisance, though not very frewently exercised, is undoubted. It is founded on the right to restrain the exercise or the erection of that, from which irreparable damage to individuals, or great public injury, would ensue (a).

Purpresture, or more properly Pourpresture, is derived from the French word pourprise, and, accord. ing to Lord Coke, signifies a close or enclosure, that is, when one encroacheth, or makes that several to himself which ought to be common to many (6). It is laid down by all the old writers, that it might be committed either against the king, the lord of the fee, or any other subject (c); but in its common acceptation, it is at present understood to mean any encroachment upon the king, either upon part of the demesne lands, or in the highways, rivers, harbours, or streets (d).

The remedy for this species of injury is either by Information of intrusion at common law, or by In

(a) 3 Atk. 751. Redes. Tr. 117.
(6) 2 Inst. 38.

(c) Skene verbo, Pourpresture, and see the references in Mr. Beames's note to Glanville, lib. 9. c. 11. p. 239.

(d) 2 Inst. 38. 272. Spelm. Gloss. Purpresture, Hale de Portibus Maris. Harg. Law Tr. 84.

formation at the suit of the Attorney General in Of injuncequity. In case of a judgment upon an informa- Pouson

tions to stay

do Purprestion of intrusion, the erection complained of, whe- tures. ther it were a nuisance or not, was abated: but upon a decree upon an information in equity, if it appeared to be a purpresture, without being at the same time a nuisance, the court might direct an inquiry whether it was most beneficial to the crown to abate the purpresture, or to suffer the erections to remain, and be arrented (a). But where the purpresture was also a nuisance, this could not be done, for the crown cannot sanction a nuisance: it has no right to use its title to the soil as a nuisance, nor to place upon that soil what will be a nuisance to the crown's subjects, nor give such right to its assignee (6). There are accordingly several early cases in the Exchequer, some of which are noticed by Lord Hale in his treatise de Portibus Maris, in which purprestures, which were also nuisances, had been committed, and decrees were made upon the application either of the attorney general, or the grantees of the crown, to abate them (c). Upon these authorities the Court of Exchequer proceeded in the year 1795, where the defendants had erected certain

(a) 2 Anst. 606. Redes. Tr. 117. There is an incorrectness in Callis's reading on the Statute of Sewers, 174. where he states a purpresture to be that species of offence done to the king immediately, or his possessions, which if done to a subject would be a nuisance.

(6) Ib. 2 Wils. Ch. Rep. 101. Rex v. Earl Grosvenor, 2 Stark. N. P. C. 511.

(c) Attorney General v. Philpot, 8 Car. 1. cit. Anst. 607. City of Bristol v. Morgan, Hale de Portibus Maris, Harg. Law Tracts, 81. Town of Newcastle v. Johnson, ib.

CHAPTER XI.

Of Injunctions to stay Purprestures and Nuisances.

The jurisdiction of Courts of Equity in cases of Purpresture and Nuisance, though not very frequently exercised, is undoubted. It is founded on the right to restrain the exercise or the erection of that, from which irreparable damage to individuals,

or great public injury, would ensue (a). Purpresture.

Purpresture, or more properly Pourpresture, is derived from the French word pourprise, and, accord. ing to Lord Coke, signifies a close or enclosure, that is, when one encroacheth, or makes that several to himself which ought to be common to many (6). It is laid down by all the old writers, that it might be committed either against the king, the lord of the fee, or any other subject (c); but in its common acceptation, it is at present understood to mean any encroachment upon the king, either upon part of the demesne lands, or in the highways, rivers, harbours, or streets (d).

The remedy for this species of injury is either by Information of intrusion at common law, or by In

(a) 3 Atk. 751. Redes. Tr. 117.
(6) 2 Inst. 38.

(c) Skene verbo, Pourpresture, and see the references in Mr. Beames's note to Glanville, lib. 9. c. 11. p. 239.

(d) 2 Inst. 38. 272. Spelm. Gloss. Purpresture, Hale de Portibus Maris. Harg. Law Tr. 84.

formation at the suit of the Attorney General in Of injuncequity. In case of a judgment upon an informa- Purores

mations to stay tion of intrusion, the erection complained of, whe- tures. ther it were a nuisance or not, was abated: but upon a decree upon an information in equity, if it. appeared to be a purpresture, without being at the same time a nuisance, the court might direct an inquiry whether it was most beneficial to the crown to abate the purpresture, or to suffer the erections to remain, and be arrented (a). But where the purpresture was also a nuisance, this could not be done, for the crown cannot sanction a nuisance: it has no right to use its title to the soil as a nuisance, nor to place upon that soil what will be a nuisance to the crown's subjects, nor give such right to its assignee (6). There are accordingly several early cases in the Exchequer, some of which are noticed by Lord Hale in his treatise de Portibus Maris, in which purprestures, which were also nuisances, had been committed, and decrees were made upon the application either of the attorney general, or the grantees of the crown, to abate them (c). Upon these authorities the Court of Exchequer proceeded in the year 1795, where the defendants had erected certain

(a) 2 Anst. 606. Redes. Tr. 117. There is an incorrectness in Callis's reading on the Statute of Sewers, 174. where he states a purpresture to be that species of offence done to the king immediately, or his possessions, which if done to a subject would be a nuisance.

(6) Ib. 2 Wils. Ch. Rep. 101. Rex v. Earl Grosvenor, 2 Stark. N. P. C. 511.

(c) Attorney General v. Philpot, 8 Car. 1. cit. Anst. 607. City of Bristol v. Morgan, Hale de Portibus Maris, Harg. Law Tracts, 81. Town of Newcastle v. Johnson, ib.

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