XII.

A writ of entry is a real action, which disproves the title of the tenant, by showing the unlawful means under which he gained possession; and it may be brought either against the wrongdoer himself, or in the degrees called the per, the per and cui, and the post. [Writs of entry, however, are now wholly obsolete in practice.]

XIII.

An assise is a real action, which proves the title of the demandant, by showing his own, or his ancestor's possession; and it may be brought either to remedy abatements; viz. the assise of mort d'ancestor, &c. or to remedy recent disseisins; viz. the assise of novel dissessin. [Writs of assise, however, are now entirely disused.]

XIV.

Where the wrongdoer hath gained the actual right of possession, he who hath the right of property can only be remedied by a writ of right, or some writ of a similar nature: as, 1. where such right of possession is gained by the discontinuance of tenant in tail; remedy, for the right of property, by writ of formedon; 2. where gained by recovery in a possessory action, had against tenants of particular estates by their own default; remedy, by writ of quod ei deforciat; 3. where gained by recovery in a possessory action, had upon the merits; 4. where gained by the statute of limitations. Remedy, in both cases, by a mere writ of right, the highest writ in the law. [The writ of right is the only real action now in use: for some centuries

it was of very rare occurrence in practice; but latterly there have been several instances of it.]

CHAPTER VIII.

Of the remaining Species of Ouster.

I.

OUSTER of a subject from chattels real is, 1. from estates by statute and elegit; 2. from an estate for years.

II.

Ouster, from estates by statute or elegit, is effected by a kind of disseisin; remedy, restitution and damages, by assise of novel dissessin; [or, which is much more usual, by scire facias and re-extent.]

III.

Ouster from an estate for years, is effected by a like disseisin or ejectment; remedy, restitution and damages; 1. by writ of ejectione firmæ ; 2. by writ of quare ejecit infra terminum, [which, however, is now obsolete.]

IV.

A writ of ejectione firma, or action of trespass in ejectment, lieth where lands, &c. are let for a term of years, and the lessee is ousted or ejected from his

term; in which case he shall recover possession of his term, and damages.

V.

This is now the usual method of trying titles to land, instead of an action real: viz. by 1. the claimant's making an actual or supposed lease upon the land to the plaintiff; 2. the plaintiff's actual or supposed entry thereupon; 3. his actual or supposed ouster and ejectment by the defendant; for which injury this action is brought, either against the tenant, or more usually against some casual or fictitious ejector; in whose stead the tenant may be admitted defendant, on coudition that the lease, entry, and ouster be confessed, and that nothing else be disputed but the merits of the title, claimed by the lessor of the plaintiff.

VI.

A writ of quare ejecit infra terminum is an action of a similar nature; only not brought against the wrongdoer or ejector himself, but such as are in possession under his title. [This writ is now wholly disused.]

VII.

Ouster of the king, or his grantees, is 1. That of a nature similar to the former, but differing in the means of its remedy; which is, delivery of possession, in consequence of an inquest of office; which process extends also to chattels personal; 2. usurpation of offices and franchises; remedy, by writ of quo warranto, to seise them into the king's hands;

cause,

3. refusal to admit, or wrongful removal of, an officer; remedy, 1. by writ of mandamus, unless to admit or restore him; to which if a false cause be returned, the remedy is by action on the case, for damages; 2. by peremptory mandamus.

CHAPTER IX.

Of Trespass, Nusance, and Waste.

I.

TRESPASS is an entry upon, and damage done to, another's lands, by one's self or one's cattle, without any lawful authority, or cause of justification— which is called a breach of his close; remedy, damages, by action of trespass quare clausum fregit, besides that of distress damage feasant.

II.

Nusance, or annoyance, is any thing that worketh damage or inconvenience; and it is either a public and common nusauce, of which in the next book; or a private nusance, which is any thing done to the hurt or annoyance of, 1. the corporeal, 2. the incorporeal hereditaments of another.

JII.

The remedies for a private nusance, besides that of abatement, are, 1. damages, by action on the case; (which also lies for special prejudice by a

public nusance) 2. removal thereof, and damages, by assise of nusance; 3. like removal, and damages, by writ of quod permittat prosternere. [The assise of nusance, and quod permittat, are now obsolete; and the only remedy at present adopted for nusance, as a civil injury, is the action on the case.]

IV.

Waste is a spoil and destruction in lands and tenements, to the injury of him who hath, 1. a right of common in the lands; 2. the remainder or reversion of the inheritance.

V.

The remedies, for a commoner, are, restitution and damages, by assise of common [which, however, is obsolete]; or damages only, by action on

the case.

VI.

The remedy for him in remainder or reversion, is, 1. preventive, by writ of estrepement at common law, [which, however, is now disused] or injunction out of chancery, to stay waste; 2. corrective, by action of waste, to recover the place wasted, and damages, [or by action on the case, in the nature of waste, for damages only.]