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out, he may have a writ of restitution. (Ex parte Reynolds, 1 Cai. R. 500.) And, according to a comparatively late case in England, it would seem to be imprudent for the lessor of the plaintiff, on recovering judgment, to attempt to take possession of the premises recovered without suing out the regular writ. (Dear v. Lord, 7 Adolph. & Ell. R. 610.) But it has been held in this country, that the lessor of the plaintiff in ejectment, after a judgment for him, may enter peaceably without the writ. The judgment would seem to be evidence of his right of entry, as between the parties and privies, so as to protect him against an action of trespass; but, after the expiration of the demise as laid in the declaration, he cannot enforce the judgment, even by execution. (Jackson v. Haviland, 13 Johns. R. 229. Smith v. Hornbach, 3 A. K. Marsh. R. 193. Wood v. Coghill, 7 Monroe's R. 601. Doe v. Black, 3 Campb. R. 447.)
The writ of execution in ejectment is called the writ of habere facias possessionem, and answers to the habere facias seisinam in the old real action; for, as in the one case, the freehold being recovered, the sheriff is ordered to give the demandant seisin of the lands in question, so also, in the other case, the possession being recovered, the sheriff is commanded to give execution of the possession. The writ of habere facias possessionem issues as a matter of course where the plaintiff recovers a judgment upon the verdict of a jury; but, where the landlord defends, or if the plaintiff be nonsuited because of the defendant's refusal to appear and confess, the lessor cannot sue out a writ of possession upon the judgment against the casual ejector without leave of the court, and only a rule to show cause is granted in the first instance. (Doe v. Burnett, 4 Barn. & Cres. R. 897.)
In executing the writ of possession, the plaintiff acts at his peril; and, if he takes more land than he has established his right to, the court will interfere in a summary way, and compel him to make restitution. (Jackson v. Rathbun, 3 Cow. R. 291. Camden v. Haskill, 3 Rand. R. 465. Roe v. Dawson, 3 Wils. R. 49. Doe v. Wilson, 2 Stark. R. 477.)
The writ of possession may be without a return day, so that it may be re-executed if the defendant forcibly re-enter; or, new process may be awarded by the court, if defendant, or one deriving title under him, re-enter. (Jackson v. Hawley, 11 Wend. R. 182. Doe v. Roe, 14 Adolph. & Ell. R. N. S. 806. Same Case, 82 Eng.
C. L. R. 805.) It has been held, however, that if the plaintiff is again ousted by the defendant, after the defendant has been removed from the premises, and the plaintiff put in, on a habere facias possessionem, he cannot have another execution on the same judgment, but must resort to another action; and this doubtless is the rule where the last onster occurs after the writ has been fully executed and the plaintiff has obtained complete possession under the writ. (Hinton v. McNiel, 5 Ham. R. 509.)
The sheriff may demand indemnity from the plaintiff previously to the execution of the writ; and where he has to deliver possession of any particular number of acres, he must estimate them according to the custom of the country in which the lands are situated. The possession to be given by the sheriff is a full and actual possession, and he is armed with all power necessary to this end. For example, if the recovery be of a house, and he be denied entrance, he may justify breaking open the door, for the writ cannot otherwise be executed. (Semayne's Case, 5 Coke's R. 91,
If the lessor recover several messuages in the possession of different persons, the sheriff must go to each of the several houses, and severally deliver possession thereof, by turning out the tenants; the delivery of the possession of one messuage in the name of all is not a good execution of the writ, for the possession of one tenant is not the possession of the other. But if the several mes. suages are in the possession of one tenant only, it is sufficient if he give possession of one messuage in the name of all. (Vide Floyd v. Bethill, 2 Rolle's R. 420.) And if the recovery is for land, the same distinction prevails. (1 Rolle's Ab. 886, H. 2.) If there be crops growing on the premises recovered, the sheriff must also deliver them to the plaintiff with the land ; and this even though the crops are severed at the time of the execution of the writ, if the severance have occurred since the demise in the declaration. (Vide Doe v. Witherwick, 3 Bing. R. 11. Hodgson v. Gascoigne, 5 Barn. & Ald. R. 88.)
The writ of possession will not be regarded as fully executed until the sheriff and his officers are gone and the plaintiff is left in quiet possession. (Kingsdale v. Man, 6 Mod. R. 27. Same Case, Salk. R. 321.)
When a sole defendant in ejectment dies after judgment, and before execution, the safer way is to sue out a scire facias, although it has been doubted whether a scire facias is necessary in such case,
for the reason that the execution is of the land only, and no new person is charged; but, at all events, the surer way is to proceed by scire facias. And, as a scire facias for the land must issue against the ter-tenant, whoever he may be, it will be also necessary to sue out another scire facias for the costs against the personal representative, unless he be himself the ter-tenant. (Withers v. Harris, Ld. Raym. R. 806. Nolan v. Seekright, 6 Munf. 185. Bradford v. Bradford, 5 Conn. R. 127.) The question of the death.of the plaintiff, in the action of ejectment at common law, cannot arise, because the nominal plaintiff never dies; but if one of two or more lessors of the plaintiff should die after judgment, an execution may be taken out by the survivors without a scire facias, upon making suggestion on the roll; and the same rule will apply where there are more defendants than one; after the death of one, execution may be taken out without a scire facias. (Howell v. Eldridge, 21 Wend. R. 678.)
Where the judgment in ejectment is against a feme sole, who marries before execution, the plaintiff's lessor should sue out a habere facias possessionem in the maiden name of the defendant for the land, and then proceed by scire facias against the husband and wife for the costs. (Doe v. Butcher, 3 Maule & Selw. R. 557.)
Where, in ejectment, the tenants make separate defenses, and separate judgments are entered against them, one of the defendants may move to quash the writ of possession issued, without the concurrence of the others. (Lowry v. Jenkins, 3 Bibb's R. 314.)
A writ of error in the action of ejectinent may be brought as in other actions, where the judgment is entered upon a verdict; but it has been doubted whether the writ can be brought in the name of the casual ejector, and, consequently, that it will not lie until after verdict. (Roe v. Doe, Barn. R. 181. Doe v. Roe, 7 Dowl. P. C. 916.) It has, however, been held in one case, at least, that a writ of error in the action of ejectment may be brought in the name of the casual ejector. (Roe v. Bank of the United States, Ohio (Con.] R. 490.) If the defendant in the.common law action of ejectment refuse to confess at the trial, he will be precluded from bringing error, because the plaintiff will then be nonsuited as to him, and the judgment will be entered against the casual ejector. But where the landlord defends alone, and the verdict is found against him, error may be brought, notwithstanding the judgment upon which the execution issues, is entered against the casual ejector; for a judgment is also in existence against the landlord, and upon that judgment the writ of error may be taken out in the landlord's name. (George v. Wisdern, 2 Burr. R. 756.)
The practice upon the writ of error in cases of ejectment is the same as in other cases, and need not be referred to here.
OF BRINGING A SECOND EJECTMENT-STAYING PROCEEDINGS IN THE ACTION.
It has been heretofore stated in respect to the effect of a judg. ment in the action of ejectment, that a recovery does not prejudice the rights of the defendant. It is manifest, therefore, that a judg. ment in ejectment confers no title upon the party in whose favor it is given, and can never be final. A judgment in ejectment simply authorizes the plaintiff to take possession of the premises, whoerer may be in possession of them; and the judgment generally terminates all presumption in favor of the defendant's title, arising from prior possession. But though one has recovered in ejectment, yet the recovery is not conclusive upon the defendant or those claiming under him; and it is always in the power of the party failing, whether claimant or defendant, to bring a new action; that is to say, this is the general rule, unless there is a statute upon the subject, changing the rule at common law. A third person may, therefore, purchase the title of the defendant in an action of ejectment, even after the recovery of a judgment against him, and bring a second action of ejectment against the former recoverer in possession, and the former judgment cannot be pleaded as an estoppel; or the defendant in the former action may acquire the title of some third person to the premises in dispute, that is, of a person who was not a party or privy to the former judgment, and then bring a new action of ejectment against the former plaintiff in possession, who will not be permitted to set up the former judgment as an estoppel in the second action. The same rule applies to the plaintiff in the former action. Though the defendant may have a verdict in his favor in the action, the judginent creates no estoppel to the title of the plaintiff. (Jackson v. Tuttle, 9 Cow.
R. 233. Bradford v. Bradford, 5 Conn. R. 127.) The structure of the record, in the action of ejectment, as has been stated in another place, renders it impossible to plead a former recovery in bar of a second ejectment; for the plaintiff in the suit is only a fictitious person, and as the demise, term, etc., may be laid many different ways, it is impossible to make it appear that the second ejectment is brought upon the same title as the first. Hence the rule in this action. (Hopkins v. M'Lauren, 4 Cow. R. 667. White v. Kyle's Lessor, 1 Serg. & Rawl. R. 515. Richardson v. Stewart's Lessor, 2 ib. 87. Ives v. Lott, 14 ib. 301. But vide Hammond v. Ridgeley's Lessor, 5 Har. & Johns. R. 245, 267.)
In Selden's old practice of the courts, it is said, "that it has sometimes been attempted in chancery, after three or four ejectments by a bill of peace, to establish the prevailing party's title; yet it has always been denied, for every termor may have an eject ment, and every ejectment supposes a new demise, and the costs in ejectment are a recompense for the trouble and expense to which the possessor is put. But that when the suit begins in chancery for relief touching pretended incumbrances on the title of lands, and the court has ordered the defendant to pursue an ejectment at law, then, after one or two ejectments tried, and the right settled to the satisfaction of the court, the court has ordered a perpetual injunction against the defendant; because there the suit is first attached in that court, and never began at law, and such precedent incumbrances appearing to be fraudulent, and inequitable against possession, it is within the compass of the court to relieve against it.” (2 Sell. Prac. 144.) The later anthorities, however, hold to a contrary practice. The courts of equity will always interfere in a proper case, and grant a perpetual injunction when it is apparent that a subsequent action is brought to harass the party, or it appears that the whole matter has been decided in the same way, by say two or three similar verdicts and judgments; and in some cases the same court in which the subsequent action is pending will grant the defendant relief, and stay further proceedings. (Vide Ramble v. Tryon, 7 Serg. & Rawle's R. 90. Cherry's Lessee v. Robinson, 1 Yeates' R. 521. Barefoot v. Fry, Bunbury's R. 138. Leighton v. Leighton, 1 P. Wm. R. 670. Deardon v. Lord Byron, 8 Price's R. 417.) The difficulty of enforcing at law the estoppel of former verdicts and judgments in ejectments, induced courts of equity at a very early day (which, un