Ord. XLVII. r. 3. Staying proceedings Upon any judgment or order for the recovery of any land and costs, there may be either one writ or separate writs of execution for the recovery of possession and for the costs at the election of the successful party. The plaintiff will be allowed to issue a writ of possession though his estate has terminated since the commencement of the action, unless the defendant show affirmatively that it will be unjust and futile to issue such writ (q). The sheriff is allowed a reasonable time within which to execute the writ; he cannot refuse to execute it if required to do so, and if he has an opportunity and is not prevented (r). The plaintiff must point out the premises and the sheriff must deliver them to him at the plaintiff's peril (s). If the plaintiff has recovered possession of the whole, the sheriff must put him in possession of the whole by turning everyone out; if of an undivided portion, the sheriff must only put him in possession of that portion (†). If the sheriff puts him in possession of a part only, the plaintiff may have a new writ for the rest (u). When possession has once been peaceably given, the plaintiff cannot have a fresh writ if the defendant retakes possession (x), unless the first execution of the writ has in reality been defeated by the defendant immediately retaking possession forcibly (y); and not even then if the rights of the parties have been changed. Proceedings will be stayed in a subsequent action for the recovery of land until the costs of a prior action are (9) Knight v. Clarke, 15 Q. B. D. 294. (r) Mason v. Paynter, 1 Q. B. 974, 981. (s) Cottingham v. King, 1 Burr. 629; Connor v. West, 5 Burr. 2672; Doe v. Wilson, 2 Stark. 477. (t) Doe v. Dawson, 3 Wils. 49; Doe v. King, 6 Exch. 791, 793. (u) Devereux v. Underhill, 2 Keb. 245. (x) Doe v. Roe, 1 Taunt. 55. (y) Doe v. Roe, 2 Dowl. N. S. 407; Kingsdale v. Mann, 6 Mod. 27; Doe v. Roe, 9 Dowl. 971. ment of costs action. paid, if the subsequent action is brought to litigate the until paysame title as the prior action (); unless the result of of previous the prior action was caused by fraud or perjury, or arose from some miscarriage for which the defeated party was not responsible (a). It is not necessary that the parties or the premises should be the same as in the prior action, if the same title is in substance in issue (b). The length of the time which has elapsed between the first and second action is immaterial (c). The costs in an action for the recovery of land are sub- Costs. ject to the same rules as the costs in other actions (d). If a plaintiff claims several closes and recovers some only, the verdict and judgment are distributive, and, if the costs follow the event, the defendant will be entitled to costs caused by the claim for those closes in respect of which the plaintiff failed (e). (2) Harvey v. Baker, 2 Dowl. N. S. 75; Doe v. Roe, 4 East, 585; Doe v. Stevenson, 3 B. & P. 22; Doe v. Alston, 1 T. R. 491. (a) Doe v. Standish, 2 Dowl. N. S. 26; Short v. King, 2 Str. 680; Tichborne v. Mostyn, L. R. 8 C. P. 29. (b) Tichborne v. Mostyn, supra ; Doe v. Harland, 10 A. & E. 761; Doe v. Roe, 8 Dowl. 444, 449; Doe v. Roe, 8 T. R. 645; Doe v. (c) Tichborne v. Mostyn, supra; 262. County Courts S. 59. CHAPTER XXIII. ACTION IN THE COUNTY COURT. 1. Ordinary Action for Re- 2. Action by Landlord to Re- 1. Ordinary Action to Recover Land. THE jurisdiction of county courts in actions for the recovery of land is now such as is conferred upon them by the County Courts Act, 1888 (a). By sect. 56 of that Act it is provided that "except as in this Act provided, the Court shall not have cognizance of any action of ejectment, or in which the title to any corporeal or incorporeal hereditaments (b), or to any toll, fair, market or franchise shall be in question ;" and sect. 59 confers jurisdiction as follows: "All actions of ejectment, where neither the value of the in ejectment. lands, tenements, or hereditaments, nor the rent payable in respect thereof, shall exceed the sum of £50 by the year may be brought and prosecuted in the Court of the district in which the lands, tenements or hereditaments are situate." It is further provided by sect. 60 that "a judge shall have jurisdiction to try any action in which the title to any corporeal or incorporeal hereditaments shall come in question where neither the value of the Jurisdiction S. 60. (a) 51 & 52 Vict. c. 43; see App. B, p. 3C9. (b) As to what is a hereditament, see:-Tomkins v. Jones, 22 Q. B. D. 599; Chew v. Holroyd, 8 Exch. 249; Moor v. Denn, 2 B. & P. 247; Harris v. Davison,15 Sim.128, 134; Baddely v. Denton, 4 Exch. 504; Stephenson v. Raine, 2 E. & B. 744; Lloyd v. Jones, 6 C. B. 81; Co. Litt. 6 a. lands, tenements or hereditaments in dispute, nor the rent payable in respect thereof, shall exceed the sum of £50 by the year, or in case of an easement or licence, where neither the value nor reserved rent of the lands, tenements or hereditaments in respect of which the easement or licence is claimed, or on, through, over, or under which the easement is claimed" shall exceed £50 a year. It will be seen that if either the rent or the value ex- Rent. ceeds £50 a year, the county court has no jurisdiction. Value. The value of the lands means their actual marketable value, and the best criterion of this is the rent which would be paid by the tenant in occupation (c). The rent "payable in respect of the lands" means the rent payable between the litigant parties, and not that payable to the defendant by a sub-tenant, though this latter is strong, but not conclusive, evidence of the value (d), and such rent must be payable in respect of the actual premises in dispute (e). If the county court judge decides upon evidence that he has jurisdiction, his decision is final, unless he has arrived at his decision under a mistake of law (ƒ). If the defendant has failed upon a summons for prohibition, he cannot afterwards raise the question of rent or value at the trial (g). Removal of action to The defendant in any action of ejectment within the s. 59. jurisdiction of the Court may, by sect. 59, " within one month from the day of service of the summons, apply to a judge of the High Court at Chambers for a summons to (c) Elston v. Rose, L. R. 4 Q. B. 4; see, too, Crowley v. Vitty, 7 Exch. 319. (d) Brown v. Cocking, L. R. 3 Q. B. 672. (e) Stolworthy v. Powell, 55 L. J. Q. B. 228. (f) Brown v. Cocking, L. R. 3 Q. B. 672. (g) Symons v. Rees, 1 Ex. D. 416. High Court. What claims may be joined with eject ment. Particulars of claim. Service of summons. Where vacant possession. the plaintiff to show cause why such action should not be tried in the High Court on the ground that the title to lands or hereditaments of greater annual value than £50 would be affected by the decision in such action; and on the bearing of such summons, the judge of the High Court, if satisfied that the title to other lands would be so affected, may order such action to be tried in the High Court, and thereupon all proceedings in the Court in such action shall be discontinued." No cause of action shall, unless by the leave of the judge or registrar, be joined with an action for the recovery of land, except claims in respect of mesne profits, or arrears of rent, or double value in respect of the premises claimed, or any part thereof, or damages for breach of any contract under which the same or any part thereof are held, or for any wrong or injury to the premises claimed (h). In all actions for the recovery of land, the particulars shall contain a full description of the property sought to be recovered, and of the annual value thereof, and of the rent, if there be any, fixed or paid in respect thereof (i). "The summons in an action to recover lands under sect. 59 should, in order to insure its service, be delivered to the bailiff forty clear days at least before the return day, and shall be served thirty-five clear days before the return day thereof" (k). "Service of the summons in an action to recover land may, in case of vacant possession (1), if it cannot otherwise be effected, be made by posting a copy of the summons (h) County Court Rules, 1889, Ord. IV. r. 1. See notes on the same rule in the High Court, p. 260. (i) Id. Ord. VI. r. 4. (k) Ord. VII. r. 7. This is altered from the old rule; see Barker v. Palmer, 8 Q. B. D. 9. (1) See p. 234. |