5. What is the most usual and important interest that is hurt by waste?-225.

That of him who hath the remainder or reversion of the inheritance, after a particular estate for life, or years in being.

6. Can he who has the remainder, for life only, sue for waste?

225.

He cannot; since his interest may never, perhaps, come into possession, and then he has suffered no injury.

7. What remedy is given for this injury of waste?-225.

The redress for this injury is of two kinds : preventive and corrective; the former of which is by writ of estrepement, the latter by that of waste.

8. What is the writ of estrepement ?-225, 226.

Estrepement is an old French word, signifying waste or extirpation; and the writ of estrepement lay at the common law, after judgment obtained in any action real, and before possession was given by the sheriff, to stop any waste which the vanquished party might be tempted to commit in lands, which were to be no longer his. But as in some cases the demandant may be justly apprehensive, that the tenant may make waste or estrepement pending the suit, well knowing the weakness of his title, therefore, the statute of Gloucester gave another writ of estrepement, pendente placito, commanding the sheriff firmly to inhibit the tenant ne faciat vastum vel estrepementum pendente placito dicto indiscusso." And, by virtue of either of these writs, the sheriff may resist them that do, or offer to do waste; and, if he cannot otherwise prevent them, he may lawfully imprison the wasters, or if necessity require, he may take the posse comitatus to his assistance.

9. When may this writ be had?-226.

It may be had in every stage, as well of such actions wherein damages are recovered, as of those wherein only possession is had of the lands. The writ will lie as well before as after judg

ment,

10. Besides the preventive redress at common law, what will the courts of equity do to stay waste?-227.

Upon a bill, complaining of waste and destruction, they will grant an injunction; which is now become the most usual way of preventing waste.

11. What is a writ of waste, and against whom may it be brought? -227.

It is an action partly founded upon the common law, and partly upon the statute of Gloucester; and may be brought by him who hath the immediate estate of inheritance in reversion or remainder, against the tenant for life, tenant in dower, tenant by curtesy, or tenant for years. Or, by statute, by one tenant in common against another, who makes waste in the estate holden in common.

12. Of what nature is the action of waste ?-228.

It is a mixed action; partly real, so far as it recovers land, and partly personal, so far as it recovers damages. If the waste be proved, the plaintiff shall recover the thing or place wasted, and also treble damages by the statute of Gloucester.

13. What if the defendant makes default?-228.

If the defendant makes default, or does not appear at the day assigned him, then the sheriff is to take with him a jury of twelve men, and go in person to the place alleged to be wasted, and there inquire of the waste done, and the damages; and make a return or report of the same to the court, upon which report the judgment is founded. But if the defendant appears to the writ, and afterward suffers judgment to go against him by default, or upon a nihil dicit (when he makes no answer, puts in no plea in defense,) this amounts to a confession of the waste.

CHAPTER XV.

OF SUBTRACTION

1. What is subtraction ?—230.

It happens when any person who owes any suit, duty, custom, or service to another, withdraws or neglects to perform it. 2. In what does it differ from disseisin ?-230.

It differs from a disseisin, in that this is committed without any denial of the right, consisting merely of non-performance; that strikes at the very title of the party injured, and amounts to an ouster or actual dispossession.

3. Is subtraction remediable?—230–234.

It is, by due course of law; but the remedy differs according to the nature of the services, whether they be due by virtue of any tenure, or by custom only. The general remedy is by distress. Other remedies are: 1. By action of debt; 2. By assise of mort d'ancestor or novel disseisin; 3. By writ de consuetudinibus et servitiis; 4. By writ of cessavit; 5. By writ of right sur disclaimer.

4. What is the remedy by writ of right sur disclaimer ?-232.

To recover the land, instead of the duty withheld. It takes place when a tenant, upon a writ of assise for rent, or on a replevin, disowns or disclaims his tenure, whereby the lord loses his verdict; in which case the lord may have a writ of right sur disclaimer, grounded on this denial of tenure.

CHAPTER XVI.

OF DISTURBANCE.

1. What is disturbance ?-236.

It is usually a wrong done to some incorporeal hereditament, by hindering or disquieting the owners in their regular and lawful enjoyment of it. This injury is of five sorts: 1. Disturbanco

of franchises. 2. Disturbance of common. 3. Disturbance of ways. 4. Disturbance of tenure. 5. Disturbance of patronage

2. What is disturbance of tenure ?—242.

It is breaking that connection which subsists between the lord and his tenant.

CHAPTER XVII.

OF INJURIES PROCEEDING FROM, OR AFFECTING THE CROWN.

1. What are injuries to which the crown is a party?—254.

These injuries are either where the crown is the aggressor, or else is the sufferer.

2. What are the common law methods of obtaining possession, or restitution from the crown, of either real or personal property?—256.

They are two: 1. By petition de droit, or petition of right. 2. By monstrans de droit, manifestation or plea of right.

3. What are the methods of redressing such injuries as the crown may receive from the subject?—257–264.

There are six methods: 1. By such usual common law ac tions as are consistent with the royal prerogative and dignity. 2. By inquisition, or inquest of office.

3. By writ of scire facias in chancery to repeal patents.
4. By information on behalf of the crown, in the exchequer
5. By writ of quo warranto.

6. By writ of mandamus

4. What action may not the king maintain ?-257.

He can maintain no action which supposes a dispossession

of the plaintiff; such as an assise or an ejectment.

5. What remedy has the subject to avoid the possession of the crown acquired by office found?—260.

He may not only have his petition of right, which discloses new facts not found by the office, and his monstrans de droit, which relies on the facts as found; but also he may (for the most part) traverse or deny the matter of fact itself, and put it in a course of trial by the common law process of the court of chancery.

6. Is quo warranto now applied to the decision of corporation disputes?-264.

It is, without any intervention of the prerogative, by statute, which permits an information in nature of quo warranto to be brought, with leave of the court, at the relation of any person desiring to prosecute the same, (who is then styled the relator), against any person usurping, intruding into, or unlawfully holding any franchise, or office in any city, borough, or town corporate

CHAPTER XVIII.

OF THE PURSUIT OF REMEDIES BY ACTION—AND FIRST, OF THE ORIGINAL WRIT.

1. What are the general and orderly parts of a suit ?—272.

The general and orderly parts of a suit (in the court of common pleas at Westminster, that being the court originally constituted for the prosecution of all civil actions), are these:

1. The original writ.

2. The process.

3. The pleadings.

4. The issue or demurrer.

5. The trial.

6. The judgment, and its incidents.

7. The proceedings in nature of appeals.
8. The execution.