« AnteriorContinuar »
plaintiff generally declares for more than he hopes to recover. If he claims a messuage in the declaration, he may recover a moiety.” The plaintiff may recover, by way of damages, costs incurred by him in a court of error, in reversing a judgment in ejectment obtained by defendant. Nowell v. Roake, 7 B. and C. 404. cited in Symonds v. Page, 1 Cr. & J. 29.
By stat. 11 G. 4. & 1 W.4. c. 70. s. 38, “in all cases of trials of ejectments at nisi prius, where a verdict shall be given for the plaintiff, or the plaintiff shall be nonsuited for want of the defendant's appearance to confess lease, entry, or ouster; it shall be lawful for the judge before whom the cause shall be tried, to certify his opinion on the back of the record, that a writ of possession ought to issue immediately, and upon such certificate, a writ of possession may be issued forthwith; and the costs may be taxed, and judgment signed and executed afterwards at the usual time, as if no such writ had issued : provided, that such writ, instead of reciting a recovery by judgment in the form now in use, shall recite shortly, that the cause came on for trial at nisi prius, at such time and place and before such a judge, (naming the time, place, and judge,) and that thereupon, the said judge certified his opinion that a writ of possession ought to issue immediately.” The stat. 1 & 2 W. 4. c. 7. which by s. 4. allows of judgments, which have been signed by virtue of that act, being vacated, executions stayed and new trials granted, if justice requires it, contains an express provision in s. 5. that it shall not be deemed to frustrate or make void the foregoing provision in the stat. 11 G. 4. and 1 W.4. c. 70. s. 38, relating to the issuing of the habere facias possessionem.
Judgment. The form of the judgment, after verdict for the plaintiff in ejectment on a single demise, is, “that the plaintiff do recover his term aforesaid, yet to come and unexpired, of and in the said tenements, with the appurtenances above-mentioned, whereof it has been found by the jurors aforesaid, that the defendant is guilty of the trespass and ejectment aforesaid, and his damages aforesaid, by the jurors aforesaid, in form aforesaid assessed; and also - 1. to plaintiff at his request, for his costs and charges aforesaid, by the court here for an increase adjudged, which said damages in the whole amount to I. And let the said defendant be taken, &c.” Where the ejectment is brought on several demises, a slight alteration in the language of the preceding form will be necessary, in order to adapt it to the particular case. The court will make every possible intendment to support the judgment. A bare possibility of title, consistent with the judgment, will be sufficient. Hence, where in the de
claration two demises were alleged for the same term, both as to commencement and duration, by two different persons, of the same premises; and the judgment was, “ that the plaintiff should recover his terms ; it was objected on error, that it was impossible the plaintiff could have a right to recover the two terms, according to the words of the declaration; because if A. demise to a man an estate for forty years, and then B., at the same moment, demise the same estate to a man for forty years, it is impossible both can have a right. But the court overruled the objection, observing, that it might be in rerum natura, that the estate might have belonged to two joint tenants, who might have refused to concur in one lease, but each might have made a lease of the whole, which would operate as a lease of the moiety. So where the declaration in ejectment contained two demises", each of an undivided third of the same estate, for the same term, but by different lessors; and the judgment was, “that the plaintiff should recover his said terms." It was objected, on error, that the judgment being for the recovery of two undivided thirds, (under a title, explained by the facts disclosed by the bill of exceptions, even in the parts stating the proof for the defendant in error, to be only for one undivided third, and confessed to be in fact to no greater extent,) was erroneous. But the court overruled the objection, observing, that this did not come before the court by special verdict, but by bill of exceptions, consequently what other evidence was given, besides that stated in the bill
, did not appear; that it did appear that a great deal of other evidence was given, and for any thing that appeared, there might be a title to another undivided third of the estate.
Execution. It is usual for the plaintiff to indemnify the sheriff, and then the sheriff gives the plaintiff execution of what he demands. If the plaintiff take out execution for more than the recovery warrants, the court will interpose in a summary way, and restore the tenant to the possession of such part as was not recovered. If the execution be for twenty acresť, the sheriff must give possession of twenty acres, according to the estimation of the county where the lands lie. When a person has obtained leave to defend as landlord, and does not attend at the trial, application must be made to the court for leave to take out execution; but after trial and
q Mortes v. Barry, Str. 1180.' I Wils. s 1 Burr. 629. 2 Burr. 2673, Doe d. I S. C.
Saul v. Dawson, C. B. 3 Wils. 49. r Roe v. Power, D. P. 2 Bos. and Pul. t 1 Rol. Rep. 420. 1 Rol. Abr. 886.(H.) N. R. 1.
verdict against landlord, no such application is necessary" is at the election of the plaintiff whether the sheriff shall return the writ of hab. fac. pos. or nots. The court will not oblige the sheriff to return it, except at the instance of the plaintiff. But after possession has been given under the writy, the plaintiff cannot sue out another writ, although he is disturbed by the same defendant, and though the sheriff have not returned the former writ; for an alias cannot issue after a writ is executed; if it could, the plaintiff, by omitting to call on the sheriff to make his return to the writ, might retain the right of suing out a new habere facias possessionem, as a remedy for any trespass which the same tenant might commit within twenty years next after the date of the judgment. Formerly, in B. R., but not in C. B., it was necessary to lodge a precipe with the officer of the court, before a writ of habere facias possessionem could be sued out; now by R. G. H. T. 2 W. 4. the lodging the precipe is dispensed with. See rule 76.
Costs.—The court will compel the real defendant to pay the costs, although he is not a party to the record. Where three ejectments were brought against a landlord and his two tenants, and the landlord obtained a rule for the consolidation of the three actions, and that the ejectment against one of the tenants (a pauper,) should abide the event of the ejectment against the other, and that action was tried, and the lessor of the plaintiff obtained judgment, and took possession of all the three tenements, the courta compelled the landlord to pay the costs of that ejectment.
XIII. Writ of Error.
By stat. 16 & 17 Car. 2. c. 8. s. 3. it is enacted, that “No execution shall be staid by writ of error upon any judgment, after verdict in ejectio firme, unless the plaintiff in error shall become bound in such reasonable sum as the court of error shall think fit, to pay the plaintiff in ejectment all such costs, damages, and sums of money, as shall be awarded upon, or after such judgment affirmed, discontinuance or nonsuit had.” The practice as to the amount of the recognizance varied in the different courts, but now by R. G. H. T. 2 W. 4. No. 27, the recognizance of bail in error shall be taken in double the yearly value and double the costs. Although the words of the statute seem to require a recognizance by the plaintiff in error himself"c, yet it has been holden, that the intention of the legislature will be satisfied by plaintiffs in error procuring responsible persons to enter into the obligation required. The plaintiff in error is not bound to give the defendant in error, notice of his entering into the recognizanced By another clause of the same statute, “in case of affirmance, discontinuance, or nonsuit, the courts are to issue a writ to inquire as well of the mesne profits, as of the damages, by any waste committed, after the first judgment; and are thereupon to give judgment; and award execution for the same, and also for costs of suit.” Under 1 G. 4. c. 87. s. 3. defendant must give two additional sureties on bringing writ of error. Roe d. Durant v. Moore, 7 Bingh. 124.
u Doe d. Lucy v. Bennet, 4 B. and C.
897. x Palm. 289. y Doe d. Pate v. Roe, 1 Taunt. 55.
2 Doe d. Masters v. Gray, 10 B. & C.
615. a Thrustout v. Shenton, 10 B. & C. 110.
XIV. In what Cases a Court of Equity will restrain the
Party from bringing further Ejectments, by granting a perpetual Injunction.
WHERE several verdicts had been obtained in ejectment, upon the same title to the satisfaction of the court, a perpetual injunction was granted, in the case of Earl of Bath, infant, and others v. Sherwin and others, D. P. 17th January, 1709f, reversing the decree of Lord Chancellor Cowper. N. Lord Cowper and Lord Sommers were present in the House of Lords when this decree was reversed. After this reversal of Lord Cowper's decree, it was usual to grant perpetual injunctions under the like circumstances, as was said by Baron Price, in the case of Barefoot v. Fry, in the Court of Exchequer. The case of Barefoot v. Frys, was determined by Eyre, Č. B. and Price, Page, and Gilbert, barons, on the 20th of February, 1723, in Sergeant's Inn Hall, on a bill filed for a perpetual injunction to restrain defendant, Fry, from any fur
b 8 East, 298. 7 Taunt. 427.
D. P. 3d March, 1720. 2 Bro. P. C.
ther proceeding in ejectment, and to quiet plaintiff in his possession. The defendant having brought five ejectments, had been nonsuited upon full evidence in three, and verdicts found for the lessor of the plaintiff in the other two. petual injunction was granted, although it was said by Mr. Ward (defendant's counsel), that courts of equity did not decree perpetual injunctions upon ejectments, and only upon an issue directed. Eyre, C. B. observed, that real actions could not be brought twice for the same thing, but now ejectments having been introduced in the place of real actions, a party might bring as many ejectments as he should think fit; and this was a reason, why courts of equity should settle and quiet the rights of parties. In Harwood v. Rolph, after three verdicts in ejectment, another ejectment was brought, in 1772, upon which a special verdict was found and argued in C. B. in Easter and Trinity terms, 1773, and in Hil. T. 1774, judgment was given for the lessor of the plaintiff (3 Wils. 497.2 Bl. 937. S. C.) and upon error brought in the Court of King's Bench, the cause was argued there in Trinity and Michaelmas term, 1774, and the judgment of the court of C. B. was reversed (see Cowp. 87); whereupon the lessors of the plaintiff brought a writ of error in parliament, and on the 9th May, 1775, the judgment of the Court of B. R. was affirmed. Upon a bill filed in the Court of Chancery, a motion was made for a perpetual injunction, to restrain defendants from any further proceeding in ejectment, which was finally heard before Lord Bathurst, Ch. assisted by Sir Thomas Sewell, M. R. on the 13th June, 1776, when an order was made for a perpetual injunction.
XV. Of the Action of Trespass for Mesne Profits.
Although the judgment in ejectment is for the recovery of damages, as well as of the term, yet, from the nature of the declaration in that action, such damages are necessarily confined to a compensation for the injury sustained by the ejectment, which being fictitious, the damages must of course be nominal. For the real injury sustained by the plaintiff, viz. the perception of the mesne profits by the tenant in possession, the law has provided another remedy, namely, by an action of trespass, vi et armis, which may be brought by the lessor of the plaintiff in ejectment, either in his own