Of the execu- without naming him terre-tenant; but where the costs are sought tion. Of error. By whom. Landlord. to be recovered upon a judgment after verdict, a sci. fa. must be sued out against the executor, to warrant the execution. (a) If the defendant die after the writ of possession is taken out, it may still be executed by the sheriff. (b) A writ of error cannot be brought in the name of the casual ejector (c), and it cannot therefore be brought by the tenant, unless upon a judgment after verdict, for in other cases the judgment is against the casual ejector. It is said, however, that where a landlord defends alone, and a verdict is found against him, error may be brought, notwithstanding the judgment upon which the execution issues is entered against the casual ejector (d); and the reason is said to be, because 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. (e) But in order to render the writ of error effectual, the landlord ought to shew it as cause against the rule for taking out execution against the casual ejector, for if he omit to do this, and suffer execution to be executed, the court will not afterwards on motion order such execution to be set aside. (f) The statute of 16 and 17 Car. 2, c. 8, s. 3, which requires bail in a writ of error brought on a judgment in ejectment, has been already mentioned.(g) Upon this statute it has been held, that the plaintiff in error may either enter into a recognisance himself, without any bail, or he may procure two responsible persons to become bail. (h) In the King's Bench the practice is said to be for the plaintiff in error, or his bail, to enter into a recognisance in double the improved rent or yearly value of the premises, and single amount of costs. (i) In the Common Pleas the clerk of the er (a) Ib. Tidd's Pr. 1172, 8th edit. (c) Barnes, 181, 189. 2 Sell. Pr. 205. (d) George d. Bradley v. Wisdom, 2 Burr, 756. Jones v. Edwards, 2 Str. 1241. Barnes, 208. 2 Sell. Pr. 205. (e) Adams Eject. 308, 2nd edit. As to entering up judgment against the landlord, see Tidd's Pr. 1034, 8th edit. (ƒ) George d. Bradley v. Wisdom, 2 Burr. 756. (g) Ante, p. 349, and see stat. 6 Geo. 4, c. 96. (h) Barnes v. Bulwer, Carth. 121. Barnes, 75, 78, 212. Keene d. Lord Byron v. Deardon, 8 East, 298. Tidd's Pr. 1211, 8th edit. (i) Keene d. Lord Byron v. Deardon, 8 East, 298; but in Thomas v. Goodtitle, 4 Burr. 2502, the recogni rors governs himself in fixing the penalty of the recognisance by the amount of the rent of the premises, and takes the recognisance in two years rent or profits, and double costs, and in that court the plaintiff in error is not bound to give the defendant in error notice of his entering into the recognisance. (a) In the King's Bench, the plaintiff in error cannot be examined as to his sufficiency, though when bail in error is put in, notice thereof should, it seems, be given, and the bail may be examined as in other cases. (b) In the Exchequer, the bail must justify in double the improved rent, or value of the premises recovered. (c) Bail in error are not chargeable for the mesne profits in an action upon the recognisance, until they have been ascertained by writ of inquiry, pursuant to the statute 16 and 17 Car. 2, c. 1, s. 4. (d) If the plaintiff, after obtaining judgment in ejectment, sue out a writ of habere facias possessionem, without waiting to tax his costs (the amount of which must be known before the penalty of the recognisance in error can be fixed), the allowance of a writ of error will not operate as a supersedeas. (e) Where the defendant had 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 of error. (f) After a recovery in ejectment and writ of error brought, the lessor of the plaintiff may peaceably enter, if he find the possession vacant, for the writ of error binds the court, but not the right of the party. (g) In ejectment by landlord against tenant, on statute 1 Geo. 4, c. 87, where a recognisance shall have been entered into, pursuant to the provisions of that act, not to commit any waste, &c. it is provided, "that such recognisance shall immediately stand discharged, and be of no effect in case a writ of error shall be brought upon such judgment, and the plaintiff in such writ shall become bound, with two sufficient sureties, unto the defendant in sance was taken in double the rent only. Tidd's Pr. 1212, 8th edit. (a) Doe d. Webb v. Goundry, 7 (c) Tidd's Pr. 1212, 8th edit. 247. See Doe v. Roache, Ca. Temp. (e) Doe d. Messiter v. Dyneley, 4 (f) Wharod v. Smart, 3 Burr. 1823, and see stat. 1 G. 4. c. 87. Ante, p. 598. (g) Badger v. Floyd, 12 Mod. 39 8. Withers v. Harris, 2 Ld. Raym. 808. Of error. Of error. the same, in such sum and with such condition, as may be conformable to the provisions respectively made for staying execution, or bringing writs of error upon judgment in actions of ejectment, by an act passed in England in the sixteenth and seventeenth years of the reign of king Charles II. and by an act passed in Ireland in the seventeenth and eighteenth years of the reign of the same king, which acts are respectively entitled, “ An act to prevent arrests of judgment, and superseding executions." Of staying There are certain cases in which the courts will stay the proproceedings. ceedings in ejectment either for a time or finally; as until the plaintiff delivers particulars of the lands which he seeks to recover; or in certain cases until security for costs is given; or until the costs of a former ejectment are paid, where two ejectments are depending at the same time; and lastly at the instance of a mortgagor under statute 7 G. 2, c. 20, s. 1. Until particulars are deliver ed. Until security Where the ejectment is brought on the forfeiture of a lease, the court will compel the plaintiff to deliver a particular of the breaches of covenant on which he means to rely, and if the plaintiff declares generally, and the defendant has any doubt what lands the plaintiff means to proceed for, he may call upon him by a judge's order to specify them (a), and in the mean time all proceedings will be stayed. Where the lessor of the plaintiff is an infant, the court will given for cots. stay proceedings until security is given for costs, unless a responsible person has been made the plaintiff in the suit, or unless the father or guardian has undertaken to pay them. (b) So where the lessor of the plaintiff is abroad (c) or dead. (d) And where the lessor of the plaintiff, or the plaintiff himself is unknown to the defendant, the latter may call for an account of the lessor's or plaintiff's residence or place of abode from the opposite attorney, and if he refuse to give it, or give a fictitious account of a person who cannot be found, the courts will stay the proceedings until security is given for the payment of costs. (e) The (a) Doe d. Birch v. Philips, 6 T. R. 597. Tidd's Pr. 643, 8th edit. Goodright v. Rich, 7 T.R. 332. (b) Noke v. Windham, Str. 693. Throgmorton d. Miller v. Smith, 2 Str. 932. Anon. 1 Wils. 130., Anon. Cowp. 128. (c) Bull. N. P. 111. Denn d. Lucas v. Fulford, 2 Burr. 1177. (d) Thrustout d. Turner, v. Grey, 2 Str. 1056. Barnes, 147. poverty of the lessor is no ground for staying proceedings until security is given for the costs. (a) In a second ejectment, the courts will stay the proceedings, until the costs of a prior one for the trial of the same title are paid (b), and also the costs of an action, if any has been brought, for the mesne profits (c), but not the damages in such action. (d) It is immaterial whether the second ejectment be brought by the lessor of the plaintiff, or by the defendant in the former ejectment (e), or between the same parties, so as it be on the same title(f); or for the same or different premises, so as it be on the same title (g), and for part of the same estate (h); nor whether it be brought in the same, or a different court. (i) The only question in these cases is, whether the second ejectment is in substance brought to try the same title. (k) The length of time which has elapsed between the first and second ejectment is not material. (1) The rule will be granted whether the merits were decided in the first action, or whether a judgment of nonsuit or non-pros was given. Where the conduct of the party against whom the application is made has been vexatious and oppressive, the courts will stay the proceedings in a second ejectment, until the costs of a former ejectment are paid, though the party be not liable to the costs of that action, as where, being lessor, he has refused to enter into the consent rule, and has been afterwards nonpross'd for want of a replication. (m) The rule to stay proceedings until the costs of a former ejectment are paid, is not inflexible, and it will not, as it seems, be granted where the verdict in the former ejectment was obtained by fraud and perjury. (n So the court will not stay proceed Of staying proceedings. Until costs of former eject ment paid. Of staying ings until the taxed costs of a suit in equity brought by the same proceedings. party for the recovery of the same premises are paid. (a) And where a rule has been obtained for staying the proceedings till the costs of a former ejectment have been paid, the court will not interfere and permit the defendant, in case those costs are not paid before a certain day, to be named by the court, to non-pros the second ejectment. (b) So the court will not stay proceedings in the second action, where the party against whom the application is made is already in custody, on an attachment for non-payment of the costs of the first action. (c) Where two ejectments are depending at the same time. This rule should be moved for early in the action, and it will be granted even before the defendant has appeared. (d) In one case it was granted after notice of trial in the second ejectment had been given, and the plaintiff had been at the expense of preparing for trial and bringing his witnesses to town. (e) Where the lessor of the plaintiff brings two actions of ejectment for the same premises at the same time in different courts, the proceedings in one of the actions will be staid until the other is determined. (f) Where several ejectments are brought in the same court for the same premises upon the same demise, the court on motion, or a judge at chambers, will order them to be consolidated. (g) And though where the ejectments are brought for different premises, the court will not, as it seems, consolidate them (h), yet in a modern case, where thirty-seven ejectments had been brought against several tenants of different houses in the same street on the same demise, Lord Kenyon, C. J. on a rule to shew cause why the proceedings in all the causes should not be stayed, and abide the event of a special verdict in one of them, said it was a scandalous proceeding; that they all depended on precisely the same title, and ought to be tried by the same record, and the rule was made absolute. (i) When the party against whom a verdict in ejectment has been (a) Doe d. Williams v. Winch, 3 B. and A. 602. (b) Doe d. Sutton v. Ridgway, 5 B. and A. 523. (c) Baines, 180. (d) Adams Eject. 320, 2nd edit. (e) Doe d. Chadwick v. Law, 2 W. Bl. 1158. (f) Thrustout d. Park v. Trouble some, Andr. 297. Tidd's Pr. 572, 8th edit. (g) Barnes, 176. Tidd's Pr. 666, 8th edit. (h) Smith v. Crabbe, 2 Str. 1149. Medlicot v. Brewster, 2 Keb. 524. (i) Doe d. Pulteney v. Freeman, T. 30 G. 3, K. B. 2 Sel. Pr. 229, 1st edit. Tidd's Pr. 666, 8th edit. |