574 DUVALL v. WATERS.

The writ of estrepement is certainly a preventive remedy, and so
far it is analogous to a writ of prohibition, by which a tenant in
dower, or by the courtesy might be prevented from doing waste.
But it is more; it is also a remedial and corrective remedy;
because, the holder of land may not only be prevented from doing
waste; but if he should do any notwithstanding the prohibition,
the plaintiff may recover damages for such waste, even up to the
time when possession shall be delivered to him. This writ has
some other peculiar traits of character. It can never be brought
into action independently and alone; it must always be associated
with another as its leader; to which it acts as an auxiliary, whose
fortunes it must follow, and to whose final fate it must submit. If
it emanates, as it may, at the same time and together with its
chief, from the chancery office, it is then called an original; but if
it be awarded by the court, in which the action is depending, as it
may, it is then called a judicial writ of estrepement. This writ,
as its very name distinctly imports, is always intended to stay
waste. It is no where spoken of as a means by which a mere tres-
pass may be prevented; in all its modifications, it is continually
treated as a remedy against waste, (h) But in a writ of right, and
in all the other actions, except a writ of waste, to which an estrepe-
ment is called in as an auxiliary, there is not any privity of title
whatever between the parties to the suit; all such privity being
expressly disavowed. The plaintiff asserts, and calls for the vin-
dication of his absolute title against an unqualified wrongdoer,
who he complains of as a disseizor, ejector, or trespasser. And,
therefore, in all such cases, the injury which it is the office of the
writ of estrepement to prevent, is not properly waste, founded on
privity of title, as between a reversioner and a particular tenant;
but literally a trespass, in the chancery acceptation of that term;
and not a mere abusive use of that which a lawful holder had a
right to enjoy.

Where the title and the rights of the parties are admitted, there
can be no mistake; and therefore, there should be no confusion or
misapplication of these terms waste and trespass. But, in the
English authorities, there is not the same distinctness, in the appli-
cation of them, to any such injuries to the inheritance, where the
rights of the parties are disputed and put in litigation. If the party
asserts his tide to an estate, by an action at law, such acts, with

(fc) F. N. B. 139; 2 Inst. 828; 3 Blac. Com. 225; Jacob. L. Dic. verb. Estrepe-
ment.