paid, because it was a vexation to bring a new action (a). No new ejectment, however, can be brought by the defendant after a recovery against him, till he has quitted the possession, or the tenant have attorned to the plaintiff (b).

Where the lessor of the plaintiff was in custody under an attachment for non-payment of costs in a former ejectment, and brought a new ejectment upon the same demise, the Court refused to stay proceedings therein, till the costs of the former should be paid (b).

In ejectment against several, the plaintiff has his election to pay costs to which of the defendants he pleases (c). But if the defendants fail, each of them is answerable for the whole costs (d).

By stat. 8 & 9 W. 3. c. 11. in ejectment against several, if any one or more be acquitted by verdict, he shall recover his costs against the plaintiff, unless the Judge shall certify in open Court that there was good cause for making such person a defendant.

This being an action of trespass, if the judge before whom it is tried shall certify under his hand on the back of the record, that the freehold or title of the land came chiefly in question, though the damages are under 40s. there shall be the full costs. This is enacted by stats. 43 Eliz. c. 6. 21 J. 1. c. 16. 22 & 23 C. 2. c. 9. 5. 136.

Of the Execution.-Touching the execution of the judgment, as the plaintiff in ejectment recovers only the possession of the property in question, execution of course is of the possession only (e).

The plaintiff having judgment to recover his term, may enter without suing out a writ of execution, which is called an habere facias possessionem; for where the land recovered is certain, the recoverer may enter at his own peril, and the assistance of the sheriff is only to preserve the peace (ƒ).

The usual and regular way, however, is to make out a writ of habere facias possessionem; which being engrossed, signed, and sealed, and a pracipe being made out for it, is carried to the office of the sheriff, who makes out a warrant thereon, and will put the lessor of the plaintiff in possession (ƒ). It has relation to the teste; therefore if tested the last day of the preceding term, may be sued out though the lessor of the plaintiff be since dead (g).

The plaintiff must take care not to take out execution for more than he had right to recover: and in order that the sheriff may not be under any difficulty in executing the writ of possession, the practice now is for the plaintiff himself not merely to point out to the

(a) Roberts v. Cook. 4 Mod. 379.

(e) Run. Eject. 424. Taylor d. Atkyns v.

(b) Fenwick v. Grosvenor. I Salk. 258. Horde. 1 Burr. 60-90.

Run. Eject. 420.

(c) Jordan v. Harper. I Stra. 516. (d) Bull. N. P. 335.

(f) 2 Sell. Pract. 202.

(g) Doc d. Beyer v. Roe. 4 Burr. 1970.

sheriff, that of which he is to deliver him possession, in execution of the writ, but to take possession at his peril of that only to which he has title; for should he take more than he has recovered and shewn title to, the Court will, in a summary way, set it right (a).

If there be several messuages in possession of different tenants, the sheriff must go to all their houses and turn them out: the delivery of the possession of one tenement in the name of all, is not suf ficient (b).

The words of the writ being quod habere facias possessionem, there must be a full and actual possession given by the sheriff, and consequently all power necessary for this end must be given him; if therefore the recovery be of a house, the sheriff must justify breaking open the door, if he be denied entrance by the tenant, because the writ cannot be otherwise executed (c).

If the officer be disturbed in the execution of the writ, the Court will, on affidavit of the circumstances, grant an attachment against the party whether he be the defendant or a stranger, for a recent ouster is a contempt; and the process is not understood to be executed completely, till the sheriff and his officers are gone, and the plaintiff left in quiet possession (d).

If therefore the sheriff turn out all persons he can find in the house, and give the plaintiff, as he thinks, quiet possession, and after the sheriff is gone, some persons appear to be lurking in the house, that is no good execution, and the plaintiff, it is said, shall have a new habere facias possessionem (e).-The new writ cannot issue, until the return of the first be expired (ƒ).

An attachment was granted absolute in the first instance, against the tenant in possession, on affidavit that he had been served with a rule of Court made absolute for delivering up the possession, and had refused so to do (g).

The law seems, however, to make a difference, where, after possession given either on the habere facias, or by agreement of the parties, the plaintiff is turned out of possession by the defendant, and where by a stranger. When it is done by the defendant himself, the plaintiff may have either a new habere facias, or an attachment, because the defendant shall never, by his own act, keep the possession which the plaintiff has recovered from him by due course of law. But where a stranger turns the plaintiff out of possession, after execution fully executed, the plaintiff is put to his new action; or to an indictment

(a) Run. Eject. 432. Far v. Denn. 1 Burr. 363-366. Cottingham v. King. Ibid. 624629. Connor v. West. 5 Burr. 2673. Roe d. Saul v. Dawson. 3 Wils. 49.

(b) 2 Sell. Pract. 203. 2 Roll. Abr. 886. () Semayne's case. 5 Co. 91. b.

(d) Kingsdale v. Mann. 6 Mod. 27. S. C. Salk. 321.

(e) Upton v. Wells. 1 Leon. 145.

(f) Run. Eject. 435.

(g) Davis d. Povey v. Doe. 2 Bl. R. 894.

for the forcible entry, by which means the force will be punished.The reason is, that the title was never tried between the plaintiff and the stranger, who possibly may claim the land by a title paramount to that of the plaintiff, or he may come in under him; and then the recovery and execution in the former action ought not to hinder the stranger from keeping that possession to which he may have a right. Were the law otherwise, the plaintiff might, by virtue of a new habere facias, turn out even his own tenants who come in after the execution is executed, whereas the possession was given him only against the defendant in the action, and not against those who were not parties to the suit (a).

If the execution go to the sheriff for twenty acres, he must give twenty acres, according to the common estimation of the country where the lands lie (b).

As the plaintiff, however, is to shew the sheriff the premises to which he has title and to take possession rightly at his peril, such a very exact description is not necessary in this action, as in a pracipe. An issue has been directed to try whether the sheriff had delivered possession properly, according to the recovery (c).

At this day, the practice is, for the plaintiff to give the sheriff security to indemnify him from the defendant, and then for the sheriff to give execution of what the plaintiff demands (d).

A judgment irregularly obtained was set aside, and the possession that had been given upon the execution ordered to be restored: but the lessor of the plaintiff (who held the possession) absconding, the rule became ineffectual; whereupon it was moved on behalf of the late tenants, for a writ of restitution; which the Court awarded accordingly (e).

And the Court at their discretion will set aside a writ of possession regularly executed, and let the landlord in to try, on suggestion of collusion (f).

If the plaintiff neglect to sue out his writ of possession for a year and a day after judgment, he must revive the judgment by scire facias, as in other cases; else the Court will award a restitution quare erronice emanavit: unless the stay of execution be by consent of the parties for the year, not for less time, com, sem. or the defendant bring error and be afterwards nonsuited (g).

But if the delay be by injunction of the Court of Chancery, there must be a scire facias, for an injunction not being a matter of record,

a Court of law will not take notice of it; unless the party has taken out execution within the year, and continued it down by vicecomes non misit breve, which may be done without a breach (a).

If the plaintiff die within a year and a day, his executors cannot take out execution without a scire facias; for they are not parties to the judgment: though if execution have been regularly sued out in the lifetime of the testator, the sheriff may execute it after his death; because the authority is from the Court, and not from the party (b).

If after judgment, and before execution, the defendant in ejectment die, and a scire facias go, it must be against the terre-tenants of the land (and the heir may come in as terre-tenant,) and not against the executor without naming him terre-tenant (c).

Where the landlord is admitted to defend on the tenant's non-appearance, and judgment is thereupon signed against the casual ejector, with a stay of execution till further order, the lessor of the plaintiff having succeeded, must apply to the Court for leave to take out execution; and in such case, if a writ of error be brought by the landlord, it may be shewn for cause, and will be a sufficient reason, against taking out execution: but if the landlord omit the opportunity of shewing it for cause, the execution is regular, and cannot be set aside (d).

Where an ejectment was brought against a feme sole, who married before trial, and a verdict and judgment was had against her in her original namé; it was held to be regular to issue an habere facias possessionem and fieri facias against her in the same name, although the fieri facias was inoperative (e).

Of the Writ of Error.

By the consent-rule, as has been before observed, the defendant undertakes to appear and receive a declaration: the necessity, therefore, of an original writ, if the proceedings be in the Common Pleas, is superseded; because as the tenant is to appear and receive a declaration, he cannot take advantage of the want of an original, unless in a writ of error: but when a writ of error is brought, the plaintiff must file an original, unless it be after verdict, when it is helped by stat. 38 Eliz. c. 14. (f)

As in the Common Pleas there is no need of an original, (which also is the case in the King's Bench when the proceedings are by ori

(a) Winter v. Lightbound. I Stra. 301. Perkins v. Wollaston. 1 Salk. 322.

(b) Run. Eject. 429.

(c) 2 Sell. Pract. 204. Eyres v. Taunton. Cro. Car. 295. S. C. Ibid. 312.

(d) Tidd's Pract. 909.

(e) Doe d. Taggart v. Butcher. 3 M. & S. 557.

(ƒ) Run. Eject. 204.

ginal,) so in the King's Bench, when the proceedings are by bill, there is no necessity for a latitat, or bill of ejectment; but the party must file bail before he can proceed. He must also file a bill of ejectment besides the plea roll, in case a writ of error be brought, before errors are assigned. The reason is, that the Court has no authority to proceed in ejectment by bill, unless the defendant be in custody; therefore, by the rule, bail is ordered to be filed, that the Court may have authority to proceed (a).

The casual ejector cannot bring error, being a mere nominal person; that writ therefore can only be brought after the defendant has appeared, and confessed lease, entry, and ouster (b).

So, if the landlord be permitted to defend, a writ of error cannot issue in the name of the casual ejector (b).

But on a writ of error from an inferior Court, in the name of the casual ejector, the Court will not order a non pros. to be entered, though his release of errors be shewn; because inferior Courts are not competent to proceed, as before observed, by a rule confessing lease, &c. (c).

So, if an infant be tenant in possession, and judgment be against the casual ejector; because no laches is imputable to an infant (c).

The plaintiff having brought a writ of error in Parliament, the Court obliged him to enter into a rule not to commit waste or destruction during the pendency of the writ. The defendant did not oppose it; and also justified to 400l. (d).

By stat. 16 & 17 C. 2. c. 8. s. 7. it is enacted, That no execution shall be stayed by writ of error upon any judgment after verdict in ejectment, unless the plaintiff in error shall become bound in a reasonable sum to pay the plaintiff in ejectment all such costs, damages, and sums of money, as shall be awarded to such plaintiff upon judgment being affirmed, or on a nonsuit, or discontinuance had; and in case of affirmance, discontinuance, or nonsuit, the Court may 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 therefore to give judgment, and award execution for the same, and also for costs of suit.

This "reasonable sum" is generally double the rent (e).

Under this statute the defendant is intitled by law to his writ of error, if he offer to become bound as the statute directs.

Therefore, where the lessor of the plaintiff swore that the defendant was insolvent, and also that he, the lessor, had a mortgage upon the land to more than it was worth, yet the Court held that the de

(a) Run. Eject. 204.

(6) 2 Sell. Pract. 205. George d. Bradley

v. Wisdom. 2 Burr. 757.

() Wharod v. Smart. 3 Burr. 1823. () Doe d. Webb v. Goundry. 7 Taunt. 427.

(e) Run. Eject. 421.