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Of the Verdict, and Judgment in Ejectment.

S the verdict is the ground of the judgment, it ought Anot to be entered for more land or different parcels than the defendant was found guilty of by the verdict; but a variance between the verdict and judgment occafioned by the mifprifion or default of the clerk in entering the judgment, is not fatal, but hath been amended by the court after a writ of error brought.-As where the plaintiff had judg ment, "That he recover his term of a meffuage and ten acres of land, and the verdict acquitted the defendant quoad the land, [by which the judgment was larger than the verdict] and, because it appeared to be the mifprifion of the clerk, who had not purfued the verdict which ought to have been his guide in making up the judgment, and no mistake in point of law in giving the judgment, therefore the party ought not to fuffer for his mifprifion, fince the ftatute of 8 H. 6. c. 12. gives the judges, in affirmance of their judgment, power to amend and reform what in their discretion feems to be the misprifion of clerks.

If the plaintiff has a verdict for all, the entry of the judgment is, that "the plaintiff recover his term against the defendant of and in the premises aforefaid," and till the ftatute 5 & 6 W. & M. took away the capiatur fine, there used to be alfo judgment quod capiatur. Carth. 390.

But if the judgment in ejectment be entered, "that he recover poffeffion of the term aforefaid," this is as well as if it had been, "that he recover his aforefaid term," because both fignify the fame thing, the poffeffion itself being to be recovered on the habere facias poffeffionem. Law of Eject.

And hence it is, that if the term expires pending the fuit, the plaintiff cannot recover the poffeffion, because the court" cannot give the plaintiff judgment for the land; when it appears upon the face of the record that his title to it is determined, yet he fhall have his judgment for damages because the trefpass still remained. Sav. 28. Co. Lit. 285.

If the defendant be acquitted of part, and judgment be entered quod def. fit quietus quoad, &c. that part whereof he is acquitted; this is error, because the judgment in this action is not final as in the writs of right, and the judgment in this action doth not protect the defendant from any further fuit, but only quits against the title fet up by the plaintiff in that action; but fince it appears that the plaintiff's demand was groundless as to that part whereof the defendant was acquitted, the judgment, as to that part must be fet down to be quod def. eat inde fine die. The

plaintiff

Of the Verdict and Judgment in Ejectment.

plaintiff as to that having no further caufe to detain him longer in court. Cro. Eliz. 763.

If one of the defendants die after a verdict, the plaintiff fhall have judgment againft the furvivors, on his fuggefting the death of one on the roll, but then the judgment must be entered as to the perfon deccafed, quod quer. nil capiat. Moor 469. Cro. Car. 513. 14. Jon. 401. Law Eject. 97. 8.

If an ejectment be brought againft baron and feme, and the plaintiff hath a verdict against both, and before judg ment the husband dies, the plaintiff may, on the fuggeftion, have judgment against the wife; not only becaufe this is a trespass committed by the wife, and that therefore he is punishable for her own act, which is injurious to another; but because, where the wife is found guilty of the ejectment, she must have obtained that in lawful poffeffion, either jointly with her husband, and then it furvives, or elfe fhe had the whole poffeffion in her own right; and in either cafe the plaintiff may punish her, and recover the poffeflion, which is wholly in her on the death of her husband. Rol. Rep. 14. Cro. Fac. 356.

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It was formerly held, that if a demife was laid in the declaration for a longer term than the leffor had intereft in the premifes, the plaintiff could not recover. Per Hale. Tr. 27 Car. 2. But upon an objection made at ni. pri. where the demife was laid for a longer term than the leffor had title; and 2 Lea. 140. Brown 133. were cited in fupport of it, lord Mansfield faid, "there is nothing in the objection, for if the leffor have a title, though but for a week, he ought to recover; for the true queftion in ejectment is, who has the poffeffory right. Suppofe a perfon has an intereft for three years only, and should make a leafe for five, it would be good for the three years. Bull, ni. pri. 106.

VOL. II.

I

Of arrefting the Judgment in Ejectment.

F by any intendment a judgment in ejectment after a verdict I can be made good, the court will do it. As where on error brought after judgment for plaintiff, that he recover his terms, when the declaration was on two separate demifes, by two different leffors of the very fame premises, and for the very fame term; and though objected, that the judgment being to recover his terms in the plural number, was wrong, as both the leffors could not have title to the fame premises, at one and the fame time, the court affirmed the judgment. And the chief juftice cited a cafe, Trin. 4 & 5 Geo. 2. Fisher and Hughes, where, upon three demifes, by feveral leffors of the fame premises, and judgment as to two demises, was entered for the plaintiff; and as to the other, for the defendant; the objection being, that there was judgment both for the plaintiff and defendant, yet the court held the judgment right. 1 Wilf. 1. S. C. Stra. 1180.

So, where after judgment to recover his term, when there were two demises of different lands, and error brought, and objected, that the judgment being in the fingular number to recover his term, was wrong. Per cur. The judgment is to recover his term de et in tenementis prædict, which reddendo fingula fingulis is well enough, for there is but one term in each part of the premises. Stra. 835.

But where on motion in arreft of judgment, the words in the declaration being one meffuage or tenement, which is too uncertain, as tenement is all a man holds, and after judgment, the fheriff cannot tell of what to deliver poffeffion, the court made a rule to stay judgment till caufe fhewn, and afterwards judgment was arrefted. Barnes 174.

The ejectment was brought for one meffuage, with the appurtenances in the parishes of A. or B. or one of them; and though after a verdict for plaintiff, judgment was arrefted for the uncertainty. Barnes 184.

The English notice at the foot of the declaration, was fubfcribed by the nominal plaintiff, inftead of the cafual ejector, which the court held bad, and difcharged the rule for judgment. Barnes 172.

The fame case in B. R. H. 2 Geo. 2. field.

Barker v. Meri

After verdict for plaintiff in ejectment, and motion in arreft of judgment, because the demife was laid on a day

not

Of arresting the Judgment in Ejectment.

not then arrived, held to be no objection. Burr. 4 pt:

1159.

The death of the plaintiff in ejectment, is no ground for a motion to arreft the judgment. 1 Mod. 252.

In ejectment against two defendants, the declaration was, that he entered instead of they entered; and, on motion in arreft of judgment, the court at first held it to be bad, but afterwards ordered it to be amended on the authorities of Cro. Fac. 306. And plaintiff had judgment. Salk. 48.

Trefpafs and ejectment by original; motion in arreft of judgment upon a fault in the original [for a bad original is not helped by verdict;] but the mafter certifying there was no original at all, the plaintiff had judgment, though in his declaration he recited an original. I Mod. 3.

The plea of the landlords and tenants, who had appeared with the filazer, and entered into the common rule, was left in the prothonotary's office, entitled with the true name of the cause; but, by mistake, in the plea was inferted the name of the plaintiff's leffor (as complaining) instead of that of the nominal plaintiff; upon which the attorney, conceiving the plea to be a nullity, figned judgment against the cafual ejector; which judgment, upon application to the court, was fet afide with cofts. Barnes 191.

Where judgment is obtained against the cafual ejector, and a trial is not loft, the courts will, on the defendant's application, his payment of cofts, and entering into the common rule, to confefs leafe, entry, and oufter, fet afide fuch judgment in ejectment, (as well as in other actions) and not put the tenant to the charge, inconvenience, and hazard of recovering back his poffeffion, by another action. Stra. 975.

There is no diftinction between a judgment in ejectment upon a verdict, and one by default; in the former, the plaintiff's right is found, in the latter, confeffed. Burr. 4 pt. 667.

A regular judgment in ejectment may be fet afide in B. R. and C. B. Stra. 975.

Of Execution in Ejectment.

If F the plaintiff has judgment to recover his term, he may enter without fuing out an babere facias poffeffionem; for where the land recovered is certain, the recoveror may enter at his own peril, and the affiftance of the sheriff is

only to preferve the peace. 2 Sid. 156. 1 Rol. Rep. 213.

Noy 71. Palm. 263.

But although, after judgment, the plaintiff is entitled to and may fue out an babere facias poffeffionem, yet if he neglect to fue out execution within a year after the judgment, he must bring a feire facias to revive the judgment as in other cafes, otherwife the court will award a reftitution quia erronice emanavit.

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The defendant in ejectment died, and a feire facias went out against the tertenants of the land, which was demurred unto, for that the heir was not named, nor was it alledged that any ftrangers had intruded; but the court ruled it well, for the heir may come in as tertenant. Sid. 317. 2 Keb. 143. But for this, vide Cro. Car. 295, 312. Cro. Fac. 506. 2 Brown 145..

In ejectment, there was judgment against the teftator, and a fci. fa. against the executor, without naming him terre-tenant; and it being objected, that in ejectment the defendant is fuppofed to be a diffeifor, and that the lands defcend to his heir at law, the plaintiff took out a new fcire facias, and amended the fault. Carth. 2.

Judgment was for two meffuages, and, after the year, a fcire facias upon it recited a judgment of one meffuage only; to which nul tiel record being pleaded, it was moved to amend it. But denied. For there may be fuch a judgment; and this does not appear to be erroneous upon the face of it. 6 Mod. 310.

But if the plaintiff hath a judgment, with ftay of execution for a year, he may, after the year, take out his execution without the fcire facias, because the delay is by

It seems to have been doubted, whether a fci. fa. lay to revive a judgment in ejectment after the year, because by the common law it lay only in real actions; and at the time of Weftm. 2. c. 45. which extends it to perfonal actions, the term or poffeffion was not recovered in the action of ejectment; but it feems now agreed, that a fcire facias lies to revive the judgment in the action after the year, as well as in others. Sid. 351. Salk. 258. Ld. Ray. 806. Comb. 250. 2 Keb. 307. Skin. 427.

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