The writ of waste was partly founded upon the common law, and partly upon the statute of Gloucester, (6 Edw. I.) c. 5.; and might have been brought by him who had the immediate estate of inheritance, in reversion or remainder, against the tenant for life, tenant in dower, tenant by the curtesy, or tenant for years. This action was also maintainable, in pursuance of the statute Westm. II. (13 Edw. I.) c. 22, by one tenant in common of the inheritance against another, who made waste in the estate holden in common: the equity of which statute extended to joint tenants, but not to coparceners. In this action treble damages were recoverable, by the statute of Gloucester, (6 Edw. I.) c. 5b; to which costs were superadded, by the statute 8 & 9 W. III. c. 11. § 3. The writ of covenant real, upon which fines were formerly levied, was also considered as a mixed action; being partly of a personal, and partly of a real nature. Real and mixed actions, however, having, with a few exceptions, fallen into disuse, (being superseded by the action of ejectment, and other more convenient remedies,) and the prosecution of them being attended with great difficulty, delay, and expense, it was enacted by the late statute, for the limitation of actions and suits re lating to real property, and for simplifying the remedies for trying the rights thereto, that "no writ of right patent, writ of right quia "dominus remisit curiam, writ of right in capite, writ of right in "London, writ of right close, writ of right de rationabili parte, "writ of right of advowson; writ of right upon disclaimer, writ de "rationabilibus divisis, writ of right of ward, writ de consuetudinibus "et servitiis, writ of cessavit, writ of escheat, writ of quo jure, writ "of secta ad molendinum, writ de essendo quietum de theolonio, writ "of ne injuste vexes, writ of mesne, writ of quod permittat, writ "of formedon in descender, in remainder, or in reverter; writ of assise "of novel disseisin, nuisance, darrein presentment, juris utrum, or "mort d'ancestor; writ of entry sur disseisin in the quibus, in the per, in the per and cui, or in the post, writ of entry sur intrusion, a 3 Chit. Blac. Com. 227. and see F.N.B. 55. Com. Dig. tit. Pleader, 30.1, &c. Bac. Abr. tit. Waste, G. &c. 3 Blac. Com. 118. 1 Rosc. 107, &c. 2 Cromp. Pr. 320, &c. 2 Sel. Pr. 335, &c. Redfern v. Smith, 9 Moore, 497. 2 Bing. 262. S. C. F. N. B. 146. Booth, 247. and see 3 Chit. Blac. Com. 157.; but see 10 Hen. VI. 12, 13. where it was said by Paston, that this was only a personal action, and a release of all actions personal was a good plea therein. d 3 & 4 W. IV. c. 27. § 36. 66 "writ of entry sur alienation, dum fuit non compos mentis, dum fuit "infra ætatem, dum fuit in prisoná, ad communem legem, in casu “proviso, in consimili casu, cui in vitá, sur cui in vitá, cui ante divortium, or sur cui ante divortium, writ of entry sur abatement, "writ of entry quare ejecit infra terminum, or ad terminum qui "præterit, or causá matrimonii prælocuti, writ of aiel, besaiel, "tresaiel, cosinage, or nuper obiit; writ of waste, writ of partition, "writ of disceit, writ of quod ei deforceat, writ of covenant real, "writ of warrantia chartæ, writ of curia claudenda, or writ per СНАР. І. quæ servitia, and no other action, real or mixed, (except a writ Except dower, "of right of dower, or writ of dower unde nihil habet, or a quare and ejectment. quare impedit, "impedit, or an ejectment,) and no plaint in the nature of any such "writ or action, except a plaint for free bench, or dower, shall be "brought after the 31st day of December 1834." "Provided always, that when, on the said 31st day of December “1834, any person, who shall not have a right of entry to any land, "shall be entitled to maintain any such writ or action as aforesaid, "in respect of such land, such writ or action may be brought at "any time before the 1st day of June 1835, in case the same might "have been brought if that act had not been made, notwithstanding "the period of twenty years thereinbefore limited shall have expired."d "Provided also, that when, on the said 1st day of June 1835, any "person, whose right of entry to any land shall have been taken "away by any descent cast, discontinuance, or warranty, might "maintain any such writ or action as aforesaid, in respect of such "land, such writ or action may be brought after the said 1st day of "June 1835, but only within the period during which, by virtue of "the provisions of this act, an entry might have been made upon “the same land, by the person bringing such writ or action, if his 66 " right of entry had not been so taken away.”e The right of entry, which is necessary to maintain an ejectment, being tolled or taken away, at common law, by a descent cast, The writ of quare ejecit infra terminum does not seem to have been a writ of entry, as here supposed; but was a mired action, for the recovery of the term, if not expired, and damages. Ante, 11. As to this writ, vide ante, 3, 4. с This classification of real and mixed actions seems to have been taken from or Real and mixed actions may, in certain cases, be brought until 1st June 1835. Or even after that period. Descent cast, &c. not to toll right of entry, &c. CHAP. I. Warranty of tenant in tail void against issue, &c. Personal actions. discontinuance, and the right of the heir barred by a warranty; it was enacted, by the statute 3 & 4 W. IV. c. 27. § 39, that " no "descent cast, discontinuance, or warranty, which may happen or "be made after the said 31st day of December 1833, shall toll or "defeat any right of entry, or action for the recovery of land:" And, by the statute 3 & 4 W. IV. c. 74. § 14, "all warranties of "lands, which, after the 31st day of December 1833, shall be made "or entered into by any tenant in tail thereof, shall be absolutely "void against the issue in tail, and all persons whose estates are "to take effect after the determination, or in defeazance of the "estate tail." Personal actions are ex contractu, vel ex delicto; being founded upon contracts, or for wrongs independently of contract. Actions Upon contracts. upon CONTRACTS are Account, Assumpsit, Covenant, Debt, Annuity, and Scire facias: Actions for WRONGS are Case, Detinue, Replevin, and Trespass vi et armisa. For wrongs. Action of debt on simple contract, against executor or administrator. Wager of law abolished. It was formerly holden, that an action of debt would not lie against an executor or administrator, upon a simple contract made by the testator or intestate, except in London, where such an action was maintainable by the custom; but where the contract was made by the executor or administrator, an action of debt might have been maintained against him 8: And now, by the late act for the further amendment of the law, and better advancement of justice h, "an action of debt on simple contract shall be main"tainable, in any court of common law, against any executor or "administrator." It should also be observed, as connected with this subject, that, by another clause of the same statute, "no wager of law shall be hereafter allowed." 66 Bohun Priv. Lond. 147. 149. 151. Riddell v. Sutton, 5 Bing. 200. h 3 & 4 W. IV. c. 42. § 14. and see the third Report of the Common Law Commissioners, pp. 17, 18. 74. i 3 & 4 W. IV. c. 42. § 13. And as to wager of law, its antiquity, &c., and the cases in which it was or was not formerly allowable, see 3 Chit. Bl. Com. 341. 1 Chit. Pl. 5 Ed. 128, 9. Tidd Prac. 9 Ed. 649. 3 Rep. C. L. Com. 17, 18. 74. and see Barry v. Robinson, 66 46 gene case Actions for against whom wrongs, by and brought. III. c. 7. By stat. 3 & 4 W. IV. c. 42. § 2. Executors, or administrators, may bring actions for injuries to real estate of deceased. For wrongs independently of contract, the action must in ral be brought by the party to whom the injury is done, against the party doing it; and if either of the parties die, the action is gone; for it is a rule that actio personalis moritur cum personáa. But there were some exceptions to this rule, chiefly arising from By stat. 4 Edw. an equitable construction of the statute 4 Edw. III. c. 7. by which executors shall have an action of trespass, for a wrong done to their testator b. And now, by the law amendment act, reciting that there is no remedy provided by law for injuries to the real estate of any person deceased, committed in his life time, nor for certain wrongs done by a person deceased in his life time to another, in respect of his property real or personal; it is enacted, that "an action of trespass, or trespass on the case, as the may be, may be maintained by the executors or administrators "of any person deceased, for any injury to the real estate of such person, committed in his life time, for which an action might "have been maintained by such person, so as such injury shall "have been committed within six calendar months before the death "of such deceased person; and provided such action shall be brought within one year after the death of such person; and the "damages, when recovered, shall be part of the personal estate of "such person: And further, that an action of trespass, or trespass on the case, as the case may be, may be maintained against "the executors or administrators of any person deceased, for any wrong committed by him in his life time to another, in respect "of his property real or personal, so as such injury shall have been "committed within six calendar months before such person's "death, and so as such action shall be brought within six ca"lendar months after such executors or administrators shall have "taken upon themselves the administration of the estate and ef"fects of such person; and the damages to be recovered in such "action shall be payable in like order of administration, as the "simple contract debts of such person." 66 66 Actions may be brought against executors or administrators, for an injury to pro perty, real or personal, by de ceased. 1 New Rep. C. P. 297. King v. Wil- 1 Wms. Saund. 5 Ed. 216. a. (1.) Prac. 9 Ed. 9. Hambly v. Trott, Cowp. 375. Wheatley v. Lane, 1 Wms. Saund. C 3 & 4 W. IV. c. 42. § 2. and see 3 Rep. C. L. Com. 17. 74. Limitation of real actions, &c. By the common law. Before stat. 32 Hen. VIII. c. 2. In a writ of right. In possessory actions. By stat. 32 Hen. It will next be proper to consider the limitation of actions, &c. relating to real property; and, as connected therewith, the provisions of the statutes 2 & 3 W. IV. c. 71, for shortening the time of prescription in certain cases, and 2 & 3 W. IV. c. 100, for shortening the time required in claims of modus decimandi, or exemption from, or discharge of tithes; and afterwards to take a view of the limitation of personal actions. It seems that, by the common law, there was no stated or fixed time, as to the bringing of actions; for though it was said by Bracton, that omnes actiones in mundo infra certa tempora limitationem habent, and, in another place, omnis querela et actio injuriarum limitata est infra certa tempora; yet Lord Coke says, that the limitation of actions was by force of divers acts of parliament, and that this general position of Bracton admitted of several exceptions c. Before the statute 32 Hen. VIII. c. 2, certain periods were fixed upon, within which titles to lands, &c. must have accrued. Thus, in ancient times, the limitation in a writ of right was from the time of Henry I.; by the statute of Merton, (20 Hen. III.) c. 8, from the time of Hen. II.; and by the statute Westm. I. (3 Edw. I.) c. 39, from the time of Rich. I. In possessory actions, the time of limitation, by the statutes of Merton and Westm. I., was successively dated from particular eras; viz. from the return of King John from Ireland, and from the coronation, &c. of King Henry III. The limitations above mentioned, being set periods, in process of time of necessity grew too large, whereupon many suits, troubles, and inconveniences did arise; and therefore a more direct and commodious course was taken, which might endure for ever, and calculated to impose diligence and vigilancy in him that was to bring his action, so that by one constant law, certain limitations might serve both for the time present, and for all times to come. This writ of right, or prescription, &c. was effected by the statute 32 Hen. VIII. c. 2, by which it was of the ancestor's enacted, that “ person or persons should sue, have, seisin or possession. Limitation in a no manner of |