XII. Verdict, p. 769; Judgment, p. 770; Execution, p. 771; Costs, p. 772. Verdict. In an ejectio firma of a messuage (c), if it be found that a small part of the house is built, by encroachment, upon the land of the plaintiff, and not the residue, yet plaintiff shall recover for that parcel by the name of a messuage. Upon trial at bar in an ejectio firma (d), by a jury from Kent, the declaration was of a fourth part of a fifth part; and the title of the plaintiff was only to one-third of one-fourth of one-fifth, being only one third of what was declared for. And it was said, that plaintiff could not have a verdict, because the verdict ought to agree with the declaration. But per Cur. The verdict may be taken according to the title. In ejectment, declaration was for a moiety of land of gavelkind tenure, in Kent (e); and the question was, whether the lessor of the plaintiff could recover a third part of the land described, having claimed a moiety in the declaration? Lord Mansfield, C. J. "The lessor of the plaintiff shall recover according to his title, and it is not any objection to his recovering what he has really a title to, that he has demanded more." If an ejectment is brought for forty acres, plaintiff may recover twenty acres (f). Denison, J., "In ejectment, 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 (g). By stat. 11 Geo. IV. and 1 Will. IV. 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 Will. IV. c. 7, which, by sect. 4, allows of judgments, which have been signed by virtue of that act, being vacated, executions stayed, (c) 2 Roll. Abr. 704. (d) Ablett d. Glenham v. Skinner, 1 Sidf. 229. (e) Denn d. Burgess v. Purvis, 1 Burr. 326, and MSS.; see Comb. 101. (f) See Guy v. Rand, Cro. Eliz. 13, and Meredith v. Rand, 43 Eliz., Dyer, 115, b., pl. 67, in marg. S. P.; and Doe d. Davenport v. Rhodes, 11 M. & W. 600. (g) Nowell v. Roake, 7 B. & C. 404, cited in Symonds v. Page, 1 Cr. & J. 29. and new trials granted, if justice requires it, contains an express provision in sect. 5, that it shall not be deemed to frustrate or make void the foregoing provision in the stat. 11 Geo. IV. and 1 Will. IV. 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 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 £- And let the said defendant be taken, &c." Where the ejectment is brought on several demises, a slight alteration of the language in 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 declaration two demises were alleged for the same term (h), 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 naturâ, 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 (i), 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 (h) Morres v. Barry, Str. 1180; 1 (i) Roe v. Power, D. P. 2 Bos. & Pul. Wils. 1, S. C. N. R. 1. 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 (k), 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 acres (1), 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 verdict against landlord, no such application is necessary (m). It is at the election of the plaintiff whether the sheriff shall return the writ of hab. fac. pos. or not (n). But the sheriff is bound to execute the writ when he is required to do it, and nothing occurs to prevent him: and where in taxing costs the master disallowed certain expenses, on the ground that the writ was not executed; it was holden, that the costs which were disallowed through the sheriff's default in not executing the writ might be recovered in an action on the case against the sheriff (o). 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 writ (p), 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 præcipe with the officer of the court, before a writ of habere facias possessionem could be sued out; now, by R. G. H. T. 2 Will. IV., the lodging the præcipe is dispensed with. See Rule 76. Where an ejectment was brought on two counts on several demises, and a verdict, by direction of the judge, was found for the plaintiff on the first, and for the defendant on the other, with liberty to the plaintiff to move to enter a verdict for him on the second; and the plaintiff's counsel had obtained leave to issue early execution on the first count, and possession was shortly after taken accordingly; it was holden, that as leave was reserved, the early execution on the first count did not form any objection to (*) 1 Burr. 629; 2 Burr. 2673; Doe d. Saul v. Dawson, C. B., 3 Wils. 49. (2) 1 Rol. Rep. 420; 1 Rol. Abr. 886, (H.) pl. 4. (m) Doe d. Lucy v. Bennett, 4 B. & C. VOL. II. 897. (n) Palm. 289. (0) Mason v. Paynter, 1 Q. B. 974; 1 G. & D. 381. (p) Doe d. Pate v. Roe, 1 Taunt. 55. G moving for the rule to enter a verdict on the second. Doe on the several demises of the Governor and Company of the Bank of England and Gregory v. Chambers, 4 A. & E. 410. Costs. The court will compel the real defendant to pay the costs (q), 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 court (r) compelled the landlord to pay the costs of that ejectment. XIII. Writ of Error. By stat. 16 & 17 Car. II. c. 8, s. 3, it is enacted, that “ No execution shall be stayed by writ of error upon any judgment after verdict in ejectio firma, 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 (s); but now, by R. G. H. T. 2 Will. IV. 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 (t), 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 recognizance (u). By another clause (x) 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 Geo. IV. c. 87, s. 3, defendant must give two additional sureties on bringing writ of error (y). 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, 1709 (z), 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. Fry (a), was determined by Eyre, C. B., and Price, Page, and Gilbert, Barons, on the 20th of February, 1723, in Serjeants'-Inn Hall, on a bill filed for a perpetual injunction to restrain defendant, Fry, from any further 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. A perpetual 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, Č. 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 Calvert and another v. Saunders, in 1739, West's C. T. H. p. 693, a perpetual injunction was decreed against a defendant from proceeding against plaintiffs, to recover, in ejectment, possession of premises, the right to which had been established against him upon a trial at bar, and upon a decree for giving effect to the verdict. 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 Terms, 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 (z) This case was recognized in Leighton v. Leighton, Str. 404, affirmed D. P. 3rd March, 1720; 2 Bro, P. C. 217; Jour nals H. of Lords, vol. 21, fo. 455. |