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Of Execution in Ejectment.

confent of parties, and in favour of the defendant; and the indulgence of the plaintiff fhall not turn to his prejudice, nor ought the defendant to be allowed any advantage of it, when it appears to be done for his advantage, and at his inftance. Rol. Rep. 194. Salk. 258. 6 Mod. 288. Barnes 132. 2 Barnes 165, 166, 172. Stra.. 300.

But it seems this delay of execution, being only the compromife 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 feire facias, least the execution fhould be fufpended quia erronice after the year, without the feire facias. Keb. 785. 6 Med. 288. and the above au

thorities.

So if the defendant brings error after the year, after judgment given, and afterwards becomes nonfuit, the defendant in error may fue out execution without a feire 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 feire facias, because the courts of law do not take notice of Chancery injunctions, as they do of writs of error; for the latter is a judicial proceeding, appearing to them upon record; whereas, an injunction is not a matter of record, fo as the court can take notice of it. Stra. 301.

But in the cafe of an injunction, the party may take out his execution within the year, and continue it down by vic. non mifit breve, and it will be no breach of the injunction, which is only to prevent an actual execution. Salk. 322. pl. 9. 6 Mod. 388.

The plaintiff may enter, pending a writ of error, upon a judgment in ejectment, if he finds the poffeffion 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 199. Ld. Raym. 808.

After verdict for plaintiff, motion for leave to take out execution against the cafual ejector, non obftante a writ of error brought by the defendant. Rule difcharged. Per cur. In cafes where the landlord is admitted to defend without the tenant, the reason for judgment against the cafual ejector, per ftatute, is, that under it, after an end of the fuit, plaintiff may obtain poffeffion of the premifes fued for, which he could not do by virtue of a judgment against a perfon out of poffeffion. But where a writ of error is brought,

03

there

Of Execution in Ejectment.

there is not the leaft reafon to give plaintiff leave to take poffeffion, till after a determination in error. Barnes 208.

No new ejectment fhall be brought by the defendant after judgment against him, till he has quitted the poffeffion, or the tenants have attorned to the plaintiff, fo as he be in poffeffion, and the defendant out, Salk. 258.

A writ of poffeffion is to the following effect :

GEORGE the third, &c. To the fheriff of
greeting. Whereas A. B. lately in our court, be-
fore us [or before our juftices, if in C. B.] at
Wefiminfler, by bill without our writ, and by the
judgment of the fame court, [if by original, fay by
the judgment of the fame court] recovered against
C. D. his term yet to come of and in one meffuage,
&c. with the appurtenances, fituate, lying, and
being at
in your county, which E. F.
demised to the faid
A. to hold and enjoy to the faid A. from the
day of then laft paft, unto the full
end and term of
years thence next enfu-
ing, and fully to be compleat and ended; by vir-
tue of which faid demife, the faid A. entered up-
on the faid tenements, with the appurtenances,
and was poffeffed thereof, until the faid C. after-
terwards, to wit, on the
day of

on the

the

day of

in

year aforefaid, with force and arms entered into the faid tenements, with the appurtenances, and him the faid A. from his farm aforefaid ejected, put out, and amoved, his faid term therein not being expired; and him fo ejected, put out, and amoved from his poffeffion of his faid farm, hath withheld, and ftill doth withhold, whereof the faid C. is convicted, as appears to us upon record. Therefore, we command you, that without delay you caufe the faid A. to have his poffeffion of his farm aforefaid, yet to come of and in the tenements aforefaid, with the appur tenances, and how you fhall execute this our writ, make appear to us [or to our juftices] at

Westminster,

Of Execution in Ejectment.

Weftminster, on, &c. [the return] and have then

there this writ.

Witness, &c.

For other forms, fee the various books of entries.

The writ of poffeffion has relation to its tefte, though it be not actually fued out till after the death of the leffor of the plaintiff, yet if tested before his death it is regular. Burr

4 pt. 1971.

The words of the writ are quod habere facias poffeffionem; fo that there must be a full and actual poffeffion given by the fheriff, and confequently all power neceffary for this end must be given him; and therefore if the recovery be of a house, the sheriff may juftify breaking open the door, if he be denied entrance by the tenant, because the writ cannot be otherwife executed. 5 Co. 91. b. 91. b. Law of Ejectm.

108.

The fheriff is to give poffeffion, upon the plaintiff's fhewing, and at the plaintiff's peril; who is, at his peril, to take poffeffion of no more than he is intitled to. Vide Burr. 4 pt. 2673.

An iffue has been directed to try whether the sheriff had delivered poffeffion properly according to the recovery. Ibid.

If plaintiff recovers several meffuages in the poffeffion of different perfons, the sheriff muft go to each houfe, and deliver the poffeffion thereof; and this is done by turning the tenants out of each of the houses; for the delivery of one meffuage in the name of all, is not a good execution of the writ; because the poffeffion of one tenant is not the poffeffion of another; but each hath his feveral poffeffion. Law of Ejectm. 108.

If the theriff turns out all perfons he can find in the house, and gives the plaintiff, as he thinks, quiet poffeffion; and, after the fheriff is gone, there appears fome perfons to be lurking in the houfe, this is no good execution; and therefore the plaintiff fhall have a new habere facias poffeffionem; because he never had execution. Upton v. Wells, Leon. 145. If the execution goes to the fheriff for twenty acres, the fheriff must give twenty acres, according to the common eftimation 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 give poffeffion of one or two acres in the name of all, which the plaintiff recovered, in order to be fafe from an action of trefpafs, by giving that which was not recovered; but now, at this day, in the cafe of recovering less than was demanded, the plaintiff ufually gives the fheriff fecurity to indemnify him from the defendant; and then the fheriff gives execution of all which the plaintiff demands under his judgment. Law of Eject. 110.

Judgment was for one mefluage, and the fheriff delivered poffeffion of two [as it was faid] a lath and plaifter being run up in the middle of the meffuage, and occupied by two families, held a good execution.

Ejectment was for five eights of a cottage, and the sheriff gave poffeffion 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 leffor of plaintiff, to reftore the tenant to three eight parts of the premifes, otherwife he will be forced to bring another ejectment for the fame. 3 Vilf. 49.

A moiety may be recovered in ejectment for an entirety.

A rule was made for the leffor of plaintiff and his attorney, to pay the tenant his cofts of the application, and reftore his goods, they having entered a general judgment, and taken out a general writ, and thereby taken poffeffion of the whole premifes and removed the goods, when the defendant had obtained a rule to defend for two thirds. Barnes 191,

A judgment irregularly obtained was fet afide, and the poffeffion given upon the execution ordered to be restored, But the leffor of plaintiff (who held the poffeffion) abfconding, the rule became ineffectual-whereupon it was moved, on behalf of the late tenants, for a writ of reftitution, which the court awarded accordingly. Barnes 178,

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In ejectment after a verdict, and writ of error allowed, if no recognizance is entered into, nor bail put in, the plaintiff may fue out his execution. Suppl. to 2 Barnes 30. as to bail on error in ejectment. Vide the flat. 16, 17 Car. 2. c. 8. and 4 Burr. 2501. and poft title Bail in error, where requifite.

Of

Of quieting the Plaintiff, and of relieving him when his Poffeffion is difturbed.

THE

HE writ of execution in ejectment is only returnable the inftance and election of the plaintiff, for the court will not direct the writ to be returned at the inftance of the defendant; which feems to be left to the choice of the plaintiff, that he may take what is moft for his advantage, in order to have the full benefit of his judgment; and the way to that is, to fuffer him to renew the execution at his pleafure, till a new execution be had; but he cannot renew execution after he has once procured the writ of poffeffion to be returned and filed; because it then appears on record, that the plaintiff hath had the benefit of his fuit, and then to award a new execution would be actum agere, and confequently fuperfluous; and therefore the court will never oblige the fheriff to make a return, but at the plaintiff's defire. Rol. Abr. 386. 2 Keb. 245. Rol. Rep. 353. Ld. Raym. 252, 346, 482, 718, 725, 1072. Carth. 496. Salk. 260. pl. 1. 5 Mod. 443.

If the writ is once returned, though not filed, it seems no new habere facias fhall iffue, because when the return is made it becomes a record, which the court then is entitled 2 Brown 216.

to.

When the writ is not returned, in order for a new writ, there must be a fuggeftion, that vicecomes non mifit breve; but this new writ cannot iffue, till the return of the first writ is out; because till that return is past non conftat to the court, but that the sheriff may do his duty, and the plaintiff thereby have the full benefit of his judgment, and so no new writ neceffary. Palm. 289,

The writ is not executed, nor the execution compleat, till the fheriff and his officers are gone, and the plaintiff left in quiet poffeffion. If the officer is disturbed in the execution of the writ, on affidavit thereof, the court will grant an attachment against the party, whether the defendant or a ftranger, because the writ is the process of the court, and the disturbance is a contempt of its authority. 6 Mod. 27.

But after poffeffion once given, and a disturbance thereof, the law makes a difference where the plaintiff is turned out by the defendant himself, and where by a ftranger: If by the defendant, and the writ not returned, the plaintiff may have a new habere facias or an attachment, because the defendant himself fhall never keep that poffeffion, which the plaintiff is entitled to, and has recovered by due courfe of

law;

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