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Of Execution in Ejectment.
consent of parties, and in savour of the desendant; and the indulgence of the plaintiff shall not turn to his prejudice, nor ought the desendant to be allowed any advantage of it, when it appears to be done for. his advantage, and at his instance. Rol. Rep. 194. Salk. 258. 6 Mod. 2S8. Barnes 132. 2 Barnes 165, 166, 172. Stra. 300.
But it seems this delay of execution, being only the compromise or agreement of the parties, is never entered on the roll; and therefore, after the year, the plaintiff ought to move the court for a fcire facias, least the execution should be suspended quia erronice after the year, without the fcire facias. Keb. 785. 6 Mod. 288. and the above authorities.
So if the defendant brings error after the year, after judgment given, and afterwards becomes nonsuit, the desendant in error may sue out execution without a fcire facias. Ld. Raym. 807. Cro. El. 416. 5 Co. 88.
But if there is an injunction out of Chancery, he cannot take out execution after the year, without a fcire facias, because the courts of law do not take notice of Chancery injwiclionsy as they do of writs of error; for the latter is a judicial proceeding, appearing to them upon record; wheieas, an injunction is not a matter of record, so as the court can take notice of it. Stra. 301.
But in the case of an injunction, the party may take out his execution within the year, and continue it down by vie. non miftt breve, and it will be no breach of the injunction, which is only to prevent an actual execution. Salk. 322. pi. 9. 6 Mod. 388.
The plaintiff may enter, pending a writ of error, upon a judgment in ejectment, if he finds the possession empty; for the writ of error binds the court, but not the party. But then he must take care that he do not enter with force. Badger v. Lloyd. Holt 190. Ld. Raym. 808.
After verdict for plaintiff, motion for leave to take out execution against the casual ejector, non objlante a writ of error brought by the desendant. Rule discharged. Per cur. In cases where the landlord is admitted to desend without the tenant, the reason for judgment against the casual ejector, per statute, is, that under it, after an end of the suit, plaintiff may obtain possession of the premises sued for, which he could not do by virtue of a judgment against a person out of possession. But where a writ of error is brought,
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Of Execution in Ejectment.
<here is not the least reason to give plaintiff leave to tako possession, till after a determination in error. Barnes 208.
No new ejectment shall he brought by the desendant after judgment against him, till he has quiued the possession, or the tenants have attorned to the plaintiff, so as he tie in possession, and the desendant out. Salk. 258.
A writ of possession is to the following effect:
GEORGE the third, &c. To the sheriff of
greeting. Whereas A. B. lately in our court, before us [or before our justices, if in C. B.] at JVeJlminJler, by bill without our writ, and by the judgment of the fame court-, [if by original, say by the judgment of the same court] recovered against C. D. his term yet to come of and in one mtffuage, &c. with the appurtenances, situate, lying, and being at ——>— in your county, which E. F.
on the day of demised to the said
A. to hold and enjoy to the said A. from the
day of then last past, unto the sull
end and term of years thence next ensuing, and sully to be compleat and ended; by virtue of which said demise, the said A. entered upon the said tenements, with the appurtenances, and was possessed thereof, until the said C. afterterwards, to wit, on the . day of in
the year aforesaid, with force and arms
entered into the said tenements, with the appurtenances, and him the said A. from his sarm aforesaid ejected, put out, and amoved, his said term therein not being expired; and him so ejected, put out, and amoved from. his possession of his said sarm, hath withheld, and still doth withhold, whereof the said C. is convicted, as appears to us upon record. Therefore, we command you, that without delay you cause the said A. to have his possession of his sarm aforesaid, yet to come of and in the tenements aforesaid, with the appurtenances, and how you shall execute this our writ, make appear to ut [or to our justices] at
Os Execution In Ejectment.
IFefimin/ler, on, (ssc. [the return] and have then there this writ.
For other forms, see the various books of entries.
The writ of possession has relation to its tejle, though it be not actually sued out till after the death of the lessor of the plaintiff; yet if tested before his death it is regular. Burr.
The words of the writ are quod habere facias pojsefjisnem;
so that there must be a sull and actual possession given by the sheriff, and consequently all power necessary for this end must be given him; and therefore if the recovery be of a house, the sheriff may justify breaking open the door, if he be denied entrance by the tenant, because the writ cannot be otherwise executed. 5 Co. 91. b. Law of Ejectm. 108.
The sheriff is to give pojjession, upon the plaintiff's Jhewing, and at the plaintiff's peril; who is, at his peril, to take possession of no more than he is intitled to. Vide Burr. 4 pt- 2673.
An issue has been directed to try whether the sheriff had delivered possession properly according to the recovery. Ibid.
If plaintiff recovers several messuages in the possession of different persons, the sheriff must go to each house, and deliver the possession thereof; and this is done by turning the tenants out of each of the houses; for the delivery of one messuage in the name of all, is not a good execution of the writ; because the possession of one tenant is not the possession of another; but each hath his several possession. Law of Ejeclm. 108.
If the sheriff turns out all persons he can find in the house-, and gives the plaintiff, as he thinks, quiet possession; and, after the sheriff is gone, there appears some persons to be lurking in the house, this is no good execution; :nd therefore the plaintiff (hall have a new habere facias pcjp-jsunem; because he never had execution. Upton v. IVells, Leon. i45.
If the execution goes to the sheriff for twenry acres, the sheriff must give twenty acres, according to the common estimation of the country where the lands are. Roll. Rep. 410.
Of Execution in Ejectment.
If the recovery is of land, and the plaintiff demanded more than he recovered, the sheriff used formerly to givepossession of one or two acres in the name of all, which the plaintiff recovered, in order to be sase from an action of trespass, by giving that which was not recovered ; but now, at this day, in the case of recovering less than was demanded, the plaintiff usually gives the sheriff security to indemnify him from the desendant; and then the sheriff give* execution of all which the plaintiff demands under his judgment. Law of Eject. no.
Judgment was for one messuage, and the sheriff delivered possession of two [as it was said] a lath and plaister being run up in the middle of the messuage, and occupied by two families, held a good execution.
Ejectment was for Jive eights of a cottage, and the sheriff gave possession of the whole to the plaintiff, who was tenant in common. Per cur. This is wrong, the writ ought to have pursued the verdict; let there be a rule upon the sheriff and the lessor of plaintiff, to restore the tenant to three eight parts of the premises, otherwise he will be forced to bring another ejectment for the same. 3 IVils. 49.
A moiety may be recovered in ejectment for an entirety.
A rule was made for the lessor of plaintissand his attorney, to pay the tenant his costs of the application, and restore his goods, they having entered a general judgment, snd taken out a general writ, and thereby taken possession of the whole premises and removed the ^oods, when the defendant had obtained a rule to desend for two thirds. Barnes J91,
A judgment irregularly obtained was set aside, and the possession given upon the execution ordered to be restored. But the lessor of plaintiff (who held the possession) absconding, the rule became ineffectual—whereupon it was moved, on behalf of the late tenants, for a writ of restitution, which the court awarded accordingly. Barnes 178.
• In ejectment after a verdict, and writ of error allowed, if no recognizance is entered into, nor bail put in, the phtintiff may sue out his execution. Suppl. to 1 Barnes 30. as to bail on error in ejectment. Vide the stat. 16, 17 Car. 2. c. 8. and 4 Burr. 2501. and fojl title Bail in error, where requisite,
Of quieting the Plaintiff, and of relieving him when his Possession is disturbed.
THE writ of execution in ejectment is only returnable at the instance and election of the plaintiff, for the court will not direct the writ to be returned at the instance of the desendant; which seems to be left to the choice of the plaintiff, that he may take what is most for his advantage, in order to have the sull benefit of his judgment; and the way to that is, to suffer him to renew the execution at his pleasure, till a new execution be had; but he cannot renew execution after he has once procured the writ of possession to be returned and filed; because it then appears on record, that the plaintiff hath had the benefit of his suit, and then to award a new execution would be actum agere, and consequently superstuous; and therefore the court will never oblige the sheriff to make a return, but at the plaintiff's desire. Rol. Abr. 386. 2 Keb. 245. Rol. Rep. 353. Ld. Raym. 252, 346, 482, 718, 725, 1072. Carib. 496. Salk. 260. pi. 1. 5 Mod. 443.
If the writ is once returned, though not filed, it seems no new habere facias shall issue, because when the return is made it becomes a record, which the court then is entitled to. 2 Brown 216.
When the writ is not returned, in order for a new writ, there must be a suggestion, that vicecomes non mi/it breve; but this new writ cannot issue, till the return of the first writ is out; because till that return is past non conjlat to the court, but that the sheriff may do his duty, and the plaintiff thereby have the sull benefit of his judgment, and so no new writ necessary. Palm. 289,
The writ is not executed, nor the execution complear, till the sheriff and his officers are gone, and the plaintiff left in quiet possession. If the officer is disturbed in the execution of the writ, on assidavit thereof, the court will grant an attachment against the party, whether the desendant or a stranger, because the writ is the process of the court, and the disturbance is a contempt of its authority. 6 Mod, 27.
But after possession once given, and a disturbance thereof, the law makes a difference where the plaintiff is turned out by the desendant himself, and where by a stranger: If by the desendant, and the writ not returned, the plaintiff may have a new habere facias or an attachment, because the defendant himself shall never keep that possession, which the plaintiff is entitled to, and has recovered by due course of