CHAPTER VI. OF WASTE. BY the statute of Gloucester, (6 Edw. I. c. 5.) the plaintiff in an action of Waste is to recover the thing wasted, and treble damages. (a) If a lease be made excepting the wood and timber, an action of waste will not lie against the lessee for cutting it down, because not demised.—- ` Anon. Dy. 119. If a termor assign his term except the trees, and after, the trees are cut down, waste will lie against the assignee, for the exception was void; but if tenant for life make a lease for years, he may except the trees, because he still remains tenant and is chargeable in waste.---Saunders' Case, 41 Eliz. 5 Co. 112. with the filazer, and pray view, &c. Then passes a writ of view, whereby the sheriff is to shew the tenant's land, and on return the defendant's attorney takes a declaration, and generally pleads ne unque seize, &c. On which issue being joined, and a trial had, the jury are to give damages for the mésne profits from the death of the husband, for which execution issues to the sheriff to give possession of a third of the lands, and the wife takes seisin by the delivery of a turf, or by any beast then on the land. Fitz. Dower, 48. Et vide William v. Gwyn, 2 Saund. 45. (a.) n. 4. (a) When the waste and damages are ascertained, and judgment is given, if the thing wasted be subsisting, plaintiff may recover it by writ of seisin, but if not, plaintiff can only have treble damages, which he must recover as he would all other damages in personal and mixed actions. 3 Blac. Com. c. 14. This writ lies at common law, and on the statute of Gloucester, for the owner of an inheritance in reversion or remainder against a tenant for life, in dower, by the curtesy, or for years, and by statute of Westminster (13 Ed. I. c. 22.) by one tenant in common against another, and the equity of the statute has been holden By this writ the plaintiff is called to appear and shew cause why he committed waste to the plaintiff's disherison. F. N. B. 55. And if he ap pear not the sheriff goes personally to the place wasted, with his jury, where he enquires of the waste done, and on his return the judgment is founded. Crocker v. Dormer, Poph. 24. But if defendant appears, and then suffers judgment by default, he confesses the waste, and in that case the sheriff goes not to the place, but only makes an enquiry of the quantum of damages, as in other actions. Foster v. Spooner, Cro. Eliz. 18. Warnford v. Haddock, Cro. Eliz. 290. The process in this action is first a writ of summons made out by the cursitor of the court, on the return of which defendant may essoin, and plaintiff adjourn, &c. Then the filazer makes out a pone, on the return of which a distringas issues for defendant to appear, which done, plaintiff declares, and defendant pleads, &c. The [120] The plaintiff declared that being seised in fee of a farm called Strode's farm, he leased the said farm to the defendant for ninety-nine years, and that the defendant did waste in the farm, to wit, in cutting down two hundred oaks in a close called Webb's close, parcel of the said farm; and on demurrer it was holden certain enough, for the declaration follows the lease, and the waste is assigned in a particular place alledged to be parcel of the demised premises.--Strode v. Devenish, M. 1 Geo. I. If the defendant plead nul waste fait, and issue is taken thereupon, the plaintiff must prove his title as laid in the declaration, for it is not admitted by the plea. The plaintiff must likewise prove the kind of waste laid in his declaration; and therefore if he alledge waste in cutting trees, and the jury find that he stubbed them did not cut them, it is variance.-Leigh v. Leigh, E. 4 W. & M. 2 Lutw. 1507. Wherever the plaintiff is to recover per visum juratorum, there ought to be six of the jury that have had the view; therefore it seems a good exception for the defendant at the trial, that there are not six viewers appear. Co. Litt. 158. The defendant, upon the general issue nul waste fait, may give in evidence any thing which proves it no waste; as that it was by tempest, &c. but not that it was for repairs, or that the plaintiff gave him leave to cut, or that he had repaired before the action brought. Neither will it be any defence that a stranger did it, for if the plaintiff should not have his action of waste, he would be without remedy; and the defendant may bring trespass against the stranger, and recover his damages. But it would be a good plea to say that the plaintiff himself did it.— Co. Litt. 283. 2 Inst. 145. 50 Hen. IV. 2 b. If waste be assigned in three houses, two gardens, &c. the jury ought to find damages severally for every of them, for if it be but of small value for any of them, the court will not adjudge it waste as to that part; but if the jury give entire damages, it shall not be intended that there were petit damages in any, and therefore the verdict will be good.— King v. Fitch, T. 1634. Cro. Car. 414. 452. If the plaintiff have judgment by nihil dicit, and a writ of enquiry issue, the jury shall enquire of the damages, but not of the place wasted, for that is confessed. (Topping v. King, E. 19 Jac. I. Winch. 5.) But after a recovery by default there goes out a writ to enquire de casto facto, et quod vastum predict' A. (the defendant) fecit, so as the defendant may give evidence, and the jury find that no waste was done, or if they find damages only to a small sum, the plaintiff shall not have judgment. Co. Litt. 355, 356. Bro. Waste, 70. (a) (a) For a corrective injury a writ of waste is proper, but there is also a remedy preventative, which is by writ of Estrepement. CHAPTER CHAPTER VII. OF WRITS OF ASSIZE. WRITS of Assize are of two sorts, novel disseisin and mort de ancestor; (a) the first process is an original out of chancery directed to the sheriff, commanding him to return a jury, who are called recognitors of the assize; they are to be taken in K. B. or C. B. for the county in which they sit, and for all others in their proper counties, but to be adjourned for * difficulty into C. B. The tenant is to appear and plead [ * 121 】 (a) Mort de ancestor lies where the abatement by a stranger happened after the death of the demandant's father, mother, brother, sister, uncle, aunt, nephew, or neice. Reg. Orig. 223, and the writ is directed to the sheriff to summon a jury to view the lands, and to enquire whether the ancestor died seised, and whether the demandant is the next heir. F. N. B. 195. 1 Com. Dig. 416, it is good as well against the abator as against any other possessor of the land, but it lies not between privies in blood. Co. Litt. 242. Yet where the abatement happen on the death of a grandfather or grandmother, this writ is no longer his but a writ of Ayle, so for a great-grandfather or great-grand-mother, a writ of Besayle, and if it mount one degree higher, then Tresayle, and if the abatement happen on the death of a collateral relative, then a writ of Cosinage must issue. Finch's Law, 266, 267, and the same things shall be enquired of as in mort de ancestor, for the only difference is, that the ancestral writs must expressly state the seisin of the ancestor at his death, and the demandant's own right of inheritance. 2 Inst. 399. There is also another auncestral writ, called a nuper obiit, which lies to establish an equal division among coheiresses, where one enters, and holds out against the rest. F. N. B. 197. Finch, 293. Reg. Orig. 226. N. N. B. 437. Booth, tit. Ass. But none can have P 2 these writs beyond the fourth degree. Hale on F. N. B. 221. though in the lineal ascent he may proceed ad infinitum. Fitz. Abr. tit. Cosinage, 15. 3 Blac. Com. 186. Sed semble that since the statute of 12 Car. II. c. 24, which converts all tenures into common socage, no assize of mort de ancestor can be brought, but recourse must be had to the writs of Entry. 3 Blac. Com. 187. This writ lics also for the heir of a wife, whose husband (being tenant by the courtesy) alienated his wife's land, and died, if such heir have not assets by descent from the tenant by curtesy, and the same shall be, as well where the wife was not seised of the land at her death, as where she was seised. N. Nat. Brev. 489. So a warden of a college, &c. shall have this writ, of rents of which his predecessor was seised, and a man may have it against several tenants in different counties by several summonses, but if a tenant make default on the return day, the plaintiff must issue a re-summons, and if he again make default then the assize shall be taken, &c. Bro. Ass. 88. Damages are recoverable in this action, but it lies not of an estate tail only where the ancestor was scised in fee. Bro. Ass. And though a man be barred in assize of novel disseisin, yet on shewing a descent or other collateral matter he may have mort de ancestor, or a writ of entry sur disseisin, &c. instantly ་ instantly (unless the court will allow him an imparlance) on the same day the writ is returnable, for the demandant is to count immediately; and therefore if he be not ready he shall be nonsuited, but he may bring a new assize. (Savier v. Lenthall, H. 1 W. & M. Salk. 82.) And note; if the defendant plead in abatement, he must plead over in bar at the same time; and if there be several defendants, and any of them do not appear the first day, it shall be taken by default against them.Saveris v. Briggs, E. 5 W. III. Salk. 8S. Though the assize be awarded by default, yet the tenant may give evidence, and the jurors find for him, but he cannot plead in abatement or bar of the assize, nor challenge.-Cragge v. Norfolk, H. 26 & 27 Car. II. 2 Lev. 120. Co. Litt. 355. An assize of novel disseisin must be founded upon a seisin in him who brings the writ, and therefore this writ is rarely used now-a-days for any thing beside the recovery of an office. It will lie as well for an office for life as in fee, though the statute of Westminster 2. c. 25, mentions only offices in fee, but that statute is made in affirmance of the common law. (a) The statute, with the reading upon it in 2 Inst. and Viner's Hor. tit. Assize (A. 2.) is worth consulting, but it being a suit not much in use, I shall not transcribe their learning.-Co. Litt. 47. The plaint need not be so certain (where it is for land) as in other writs, because the judgment is to recover per visum recognitorum, therefore if it be so certain that the recognitors may put the demandant into possession, it is sufficient. But the plaintiff must prove his title precisely as laid.-The Serjeant's Case, E. 1553. Dy. 84. Heydon v. Goodsalve, H. 1614. Cro. Jac. $35. If the assize be brought for an ancient office, the demandant need not shew what fee or profit is belonging to it, for it shall be intended there is some; but for an office newly created he must shew what fee or profit is granted for the execution of it, for no assize lies for an office without fee or profit.-Webb's Case, 6 Jac. I. 8 Co. 49. : An assize of novel disseisin must be founded on an actual seisin and therefore in an assize for the office of Serjeant at mace of the House of Commons, where to prove the seisin, he proved that he went to the house and demanded his place, but received no fees, but that in an action on the case for this disturbance he recovered £300 damage; it was holden not to be sufficient proof of seisin, and the plaintiff was non (a) It must however be an office of profit and not of charge only. Webb's Case, 8 Co. 49. suited. suited. But in a new assize, the plaintiff giving in evidence, that one committed by the house to the defendant, compounded with * the plaintiff [ * 122 ] for the fees (though the defendant was in possession both before and after) it was holden to be a good seisin: it was also proved that the plaintiff in the lobby laid his hands upon the mace then in the defendant's hands, and would have taken it, but the defendant hindered him; and this was holden good evidence of seisin and disseisin, and the demandant had a verdict.-Cragge v. Norfolk, T. 26 Car. II. 2 Lev. 108. 120.(a) In an assize for estovers to a house, upon issue nul tort, nul disseisin, the defendant may give in evidence, that the house is fallen down. (Cowper v. Andrews, M. 10 Jac. I. Hob. 39.) So in an assize for land, he may upon the general issue give in evidence a lease of the land made to him before the disseisin, but not a release after.-Co. Lit. 283. (b) (a) In assize for the office of filazer in the common pleas, the demandant counted de libero tenemento, and alledged seisin for taking money for a capias, the post being put in view where the officer sat. Held, that the court may discharge him, if the cause be without record; but if there be no cause, the court is not a disscisor, and he that took the office ought to survey that at his peril. Vaux v. Jefferen, Dy. 115. (a.) So for the office of registrar of the admiralty assize lieth, and in this case the demandant laid a prescription to it, quod quilibet hujusmodi persona, who should be named by the admiral, should be registrar of the admiralty for life. Hunt v. Ellisdon, Dy. 153. So for the office of wood-ward, park-keeper and keeper of chases, warrener, &c. assize lieth, yet these are not at common law, but by the statute of Westminster 2. c. 25. for they are of profit to be taken in alieno solo. It lieth also of all other offices or bailiwicks in fee. Webb's Ca. & Co. 49. (b) Assize lies also for tithes by stat. 32 Hen. VIII. c. 7. Cadogan v. By magna charta, 9 Hen. III. For the proceedings in assize of CHAPTER |