Gambar halaman
PDF
ePub

extended by implication.-Hence where the custom is, that the eldest sister shall inherit, yet by that custom the eldest aunt or the eldest niece shall not inherit the land. So if the custom be that the youngest son shall inherit, and a man has issue two sons and dies, and the land descends to the younger son, who dies without issue, the eldest son of the eldest brother shall have the land; because the custom does not hold in the transversal line, but only in the lineal descent'.

Evidence of reputation of the custom of a manord, that, in default of sons, the eldest daughter, and, in default also of daughters, the eldest sister, and in case of the death of all, the descendants of the eldest daughter or sister respectively of the person last seised should take, is proper to be left to the jury of the existence of such a custom, as applied to a great nephew (the grandson of an eldest sister) of the person last seised; although the instances in which it was proved to have been put in use extended no farther than those of eldest daughter and eldest sister, and the son of an eldest sister. The existence of such extended custom in adjacent manors seems to be no evidence of the custom in the particular manor.

The premises were laid in the declaration to be in the parish of Farnham, and at the trial were proved to be in the parish of Farnham Royal; but it was not shewn by the defendant that there were two Farnhams. The variance was holden to be immaterial".

Evidence on the part of the Defendant.-If the defendant prove a title out of the lessor of the plaintiff, it is sufficient, though he have not any title himself; but he ought to prove a subsisting title out of the lessor, for producing an ancient lease for 1000 years will not be sufficient, unless he likewise prove possession, under such lease, within twenty years. So if the defendant produce a mortgage deed, where the interest has not been paid, and the mortgagee never entered, it will not be sufficient to defeat the lessor, who claims under the mortgagors; because it will be presumed, that the money was paid at the day, and consequently, that it is not a subsisting title; but if the defendant prove interest paid upon such mortgage after the time of redemption, and within twenty years, it will be sufficient to nonsuit the plaintiff. No less time than twenty years will raise a presumption that

b Ratcliff v. Chapman, 4 Leon. 242. c 1 Rol. Abr. 624. pl. 2.

d Doe d. Foster and another v. Sisson, 12 East, 62.

e Doe d Tollet v. Salter, 13 East, 9. f Bull, N. P. 110.

g Wilson v. Witherby, per Holt, C.J. Bull. N. P. 110.

a mortgage term has been assigned or surrendered; although the defendant neither proves that interest continues to be paid, nor in any way accounts for his possession of the mortgage deed.

The defendant produced a mortgage for years', by deed, from the plaintiff's ancestor, upon which was an indorsement in hæc verba, "Received of M. O. 500/. on the within "recited mortgage, and all interest due to this day; and I "do hereby release to the said M. O., and discharge the "mortgaged premises from the said term of 500 years." On a case reserved, the court held, 1st, that these words amounted to a surrender of the term; 2d, that such surrender might be by note in writing, without deed, by the statute of frauds (29 Car. 2. c. 3. s. 3.); 3d, that a note in writing was not required to be stamped (48).

XII. Verdict-Judgment-Execution.

Verdict.-IN an ejectio firma of a messuage*, 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 firmæ1, 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 onefourth of one-fifth, being only one-third of what was declared

h Doe v. Calvert, 5 Taunt. 170.

i Farmer d. Earl v. Rogers and another, T. 1755. C. B. Bull. N. P. 110. 2 Wils. 26. S. C.

k 2 Roll. Abr. 704.

1 Ablett d. Glenham v. Skinner, 1 Sidf. 229.

(48) So in Hodges v. Drakeford, 1 Bos. & Pul. N. R. 270. it was holden, that an assignment in writing, not under seal, indorsed on a lease, did not require a stamp duty before the stat. 44 Geo. 3. c. 98. But now, by that statute, a deed or other instrument of assignment is made subject to a stamp duty. The like provision has been made by the last stamp act, 55 Geo. 3. c. 184. See Schedule, part I. tit. Mortgage.

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"; 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". 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."

[ocr errors]

66

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 appur"tenances 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 afore"said, 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 adjudg ed, which said damages in the whole amount to "And let the said defendant be taken, &c."

[ocr errors]
[ocr errors]

Where the ejectment is brought on several demises, a slight alteration in the language of 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°, 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

m Denn d. Burgess v. Purvis, 1 Burr. 326. and MSS. See Comb. 101.

a See Guy v. Rand, Cro. Eliz. 13. and

Meredith v. Rand, 43 Eliz. Dyer, 115. b. pl. 67. in marg. S. P.

o Merres v. Barry, Str. 1180. 1 Wils. 1. S. C.

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, 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 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, 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', the sheriff must give possession of twenty acres, according to the estimation of the county where the lands lie.

It is at the election of the plaintiff whether the sheriff shall return the writ of hab. fac. pos. or not'. 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', 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

p Roe v. Power, D. P. 2 Bøs, and Pul. N. R. 1.

q 1 Burr. 699. 2 Burr. 2673. Doe d. Saul v. Dawson, C. B. 3 Wils, 49.

r 1 Rol. Rep. 420. 1 Rol. Abr. 886. (H.) pl. 4.

Palm. 289.

t Doe d. Pate v. Roe, 1 Taunton's R.

55.

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.

[ocr errors]

XIII. Writ of Error.

By stat. 16 & 17 Car. 2. c. 8. s. 3. it is enacted, that "No "execution shall be staid by writ of error upon any judg"ment, 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 eject-"ment, all such costs, damages, and sums of money, as "shall be awarded upon, or after such judgment affirmed, "discontinuance, or nonsuit had."

Although the words of the statute seem to require a recognizance by the plaintiff in error himself", 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.

"in case of afBy another clause of the same statute, "firmance, 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 judg "ment; and are thereupon to give judgment, and award "execution for the same, and also for costs of suit."

XIV. In what Cases a Court of Equity will restrain the Parly 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,

[blocks in formation]
« SebelumnyaLanjutkan »