Of waste. Form of the writ. Process. If the statute be recited it is sufficient, though not exactly recited. (a) In every writ of waste the plaintiff should conclude to his disherison (b), but if the writ be brought by husband and wife, on a lease made out of the inheritance of the wife, it must conclude to the disherison of the wife only. (c) The process in waste is summons, attachment, and distress, and if the tenant neglects to appear at the return of the distringas, a writ of inquiry of the waste done may issue, on the return of which the plaintiff may have judgment. Essoign lies. A view is had by the jury. Receit lies. Damages are recoverable; and costs in certain cases. Of estrepement. At common law, if the tenant in a real action commits waste after judgment, and before execution, a writ of estrepement lies. (d) And by the statute of Gloucester, c. 13, the writ may be brought at any time pending the action. The writ is either original or judicial. (e) When original, it may be issued at the same time with the original writ in the real action intended to be prosecuted; when judicial, it cannot be issued until the return of the latter, for until that time the action is not depending in the Common Pleas. (f) The writ may be directed either to the sheriff and the party jointly, or there may be separate writs to each of them. (g) If the tenant makes a feoffinent pending the suit, although he still continues tenant in law to the demandant, yet the latter may have a writ of estrepement against him and the feoffee jointly, and so in case of a voucher or prayer in aid. (h) But if a stranger of his own wrong, after the writ delivered to the tenant, does waste against the will of the tenant, the latter shall not be punished for such waste. (i) Where there are two tenants, the demandant may have estrepement against one of them. (k) The tenant, notwithstanding this writ, may cut down corn, grass, or underwood, and do any acts which do Of estrepement. not amount to waste or destruction. (a) When brought against the tenant, the writ of estrepement operates as a prohibition, and if he afterwards commits waste, he will be liable to answer for it in damages. (b) On this account a doubt has arisen whether a writ of estrepement is maintainable under the statute, pendente lite, in those actions in which damages are recoverable, for in real actions, in which damages are recoverable, they are in general recoverable up to the time of verdict; and, therefore, damages for the waste done pendente lite, may be recovered in the original action. (c) It seems, however, that estrepement will lie, although damages are recoverable in the first action, for no mischief can arise from allowing it, since a recovery of damages in the one, is a bar in the other; and in estrepement pendente placito, the demandant cannot recover damages until judgment given in the principal action (d); and, moreover, much inconvenience would accrue, if the tenant should be allowed to pull down houses, and afterwards not be able to answer in damages for the waste. (e) At all events, there appears to be no objection to issuing the writ to the sheriff, authorising him to prevent the committing of waste; and in cases where no damages are recoverable, as in a writ of right, or are not recoverable pendente lite, as in a writ of waste, estrepement clearly lies before judgment. (ƒ) So there can be no doubt as to its lying in every case after verdict against the tenant. The writ of estrepement lies generally in all real actions, and in a scire facias to execute a fine, though no land is demanded; in a quid juris clamat, and in attaint (g); but in partition no estrepcment lies, because both parties are in possession. (h) If the tenant commits waste after a writ of estrepement, the demandant may declare on the writ of estrepement, to which the tenant may plead no waste committed, and if it be found by verdict that the tenant has committed waste, the demandant may (a) 2 Inst. 329. F. N. B. 61 C. (b) 2 Inst. 829. (c) 2 Inst. 328. See post, title "Damages." (d) 2 Inst. 328. Com. Dig. Waste, (B. 2). Lord Nottingham's note, Co. Litt. 355, a (1). (e) F. N. B. 60 Y. ) last. 328. Foljamb's Case, 5 Rep. 115, b; and see Ardern v. Darcy, (g) 2 Inst. 328. (h) 2 Inst. 329, but see Noy, 143, contra. In Wharod v. Smart, 3 Burr. 1823, the court obliged the plaintiff in error in ejectment, to enter into a rule not to commit waste or destruction during the pendency of the writ of error. Of estrepement. have judgment for his damages and costs. (a) When the writ of estrepement is directed to the sheriff, he may resist all who would do waste, and imprison them if they resist, and may summon the posse comitatus to assist him. (b) And it seems, that if the party to whom the writ is directed, afterwards does waste, it is a contempt of the prohibition, and he may be punished accordingly. (c) (a) Playstow v. Bacheller, Moor, Rast, (b) Foljamb's Case, 5 Rep. 115, b. 2 Inst. 329. Earl of Cumberland v. Countess Dowager, Hob. 85. (c) Earl of Cumberland v. Countess Dowager, Hob. 85. Of Writs Ancestral Possessory. WHEN a stranger abates on the death of the father, mother, of aliel, besaiel, brother, sister, uncle, aunt, niece, or nephew of the demandant, and cosinage. it has been shewn that the proper real action is an assise of mortd'ancestor; but when the grandfather, great-grandfather, or collateral cousin, or relation of the demandant, further removed than the degrees above specified, dies seised of lands or tenements, and a stranger abates, the heir, if grandson, may have a possessory ancestral writ, called a writ of aiel; if great-grandson, a writ of besaiel; or if he be a collateral relative, out of the above degrees, a writ of cosinage. In these writs it is sufficient that the ancestor was seised on the day of his death (a); and like the assise of mortd'ancestor, they will not lie between privies in blood, but the demandant may have a nuper obiit, or writ of right de rationabili parte, in such case. (b) The aunt and the niece may join in a writ of aiel on the seisin of their common ancestor. (c) Where a person is entitled to one of these writs, he cannot have another, as a writ of cosinage instead of aiel, and if he sues out the former writ, the tenant may plead in abatement the seisin of the grandfather. (d) It is not necessary to shew how cousin in the writ (e), though it is in the count. (f) The process in these actions is summons and grand cape before appearance, and petit cape after appearance. They have the usual incidents of a præcipe quod reddat, and the jurors do not, as in a mort d'ancestor, appear the first day. As the heir may enter upon an abator, these writs are grown obsolete, and ejectment is now brought instead of them. A nuper obiit is an ancestral writ brought to establish an equal of nuper obiit. division of the land, where, on the death of an ancestor who has (a) F. N. B. 221 D, I. Booth, 200. (c) F. N. B. 221 H. 2 Inst. 308. "Pleas in Abatement." (e) Br. Ab. formedon 26. Of nuper obiit. several heirs, one of them enters and holds the others out of possession. (a) It lies where the grandfather, father, brother, uncle, or other ancestor of the demandant, dies seised, in fee-simple, of lands, tenements, or rents, and after such death, one of the heirs of the same ancestor enters and deforces the demandant, in which case, the heir who is deforced may have a nuper obiit against the other parcener or parceners. (b) This writ only lies where the common ancestor dies seised of lands in fee-simple ; for if one sister deforces another of land, of which her ancestor dies seised in tail, a formedon, and not a nuper obiit lies. (c) When the ancestor does not die seised of the lands, and one of the coparceners, to whom they have descended, deforces the other, a writ of right de rationabili parte, and not a nuper obiit, must be brought, the latter writ only lying where the ancestor dies seised (d); in which latter case, the two writs are concurrent remedies. (e) It can scarcely be necessary in any case to resort to this writ at the present day, for if there be an actual ouster of one of the parceners, which is necessary to maintain this writ, ejectment may be brought. (ƒ) If two coparceners enter, after the death of the ancestor, and deforce a third sister (g), and afterwards make partition between them, and one of them aliens her part to a stranger in fee, yet the third sister may have a nuper obiit against her two sisters, notwithstanding the alienation, and shall recover the third part of the land not aliened; but for the recovery of the third part of the land aliened, she must bring a writ of mortd'ancestor in her own name, and the name of the other coparceners, or a writ of aiel, as the case may require. (h) A nuper obiit lies on the seisin of the great-grandfather (i), and between sisters of the half-blood (k), and it is said that it lies on the seisin of the father, if he were seised the day that he died, or the day before, for that amounts to a dying seised. (1) |