Higgins' Lessee v. Roe Phillips

3 Del. 49

• Court: Superior Court of Delaware
• Decided: July 5, 1839
• Status: Published

Opinion

After a continuance of the cause at the trial term, Mr. Bayard moved for a writ of estrepement; and the question arose whether he was entitled to the writ' as of course, without affidavit. He cited 3 Blac. Corn., ch. 14, sec. 2, waste, to show that it was a common law writ; but the Chief Justice suggested that the writ was given by the statute of Gloucester, and applied only to real actions and actions of waste, and not in possessory actions suchas ejectment. The act of assembly (Dig. 167,) gives authority to award the writin ejectment; thus extending the remedy: and it is but reasonable that the party applying for it should file an affidavit showing the apprehension that waste will be done.

An affidavit was then filed, and the writ was ordered.