Of entering judgment. The interest ac quired by the judg ment. Suing out execution. execution on the first count, was no bar to his also having judgment on the other ". On suing out a writ of habere facias possessionem, a præcipe was formerly required in the King's Bench, but not in the Common Pleas, but now, by a general rule of all the courts, this writ may be sued out without lodging a præcipe with the officer of the court, and without having it signed by an officer; but it shall not be sealed till the judgment paper or postea shall be seen by the proper officer b. By the judgment in ejectment, the plaintiff's lessor obtains possession of the lands recovered by the verdict, but does not acquire any title thereto, except such as he previously had. If, therefore, he have a freehold interest in them, he is in as a freeholder; if he have a chattel interest, he is in as a termor; and if he have no title at all, he is in as a trespasser, and liable to account for the profits to the legal owner, without any re-entry on his part the verdict in the ejectment being no evidence in a subsequent action, even between the same parties. The plaintiff should take care not to take out execution for more than he had a right to recover; if he does the court will set it right in a summary way. As where in ejectment for fiveeighths of a cottage, the sheriff gave possession of the whole; held, that the tenant should be restored to his possession of three-eighths of the premises. It is now the practice for the plaintiff to give the sheriff security to indemnify him from the defendant, and then for the sheriff to give possession of what the plaintiff demands f. The plaintiff having judgment to recover his term may enter without suing out a writ of execution; for where the land recovered is certain, he may enter at his own peril; the assistance of the sheriff is only to preserve the peace &. If the plaintiff obtains a verdict and judgment against the landlord, execution may be issued without any further order of the court. But when the landlord is admitted to defend, and judgment is entered against the casual ejector, with a stay of execution until a further order, the plaintiff cannot take out execution without having moved the court for leave to do so, and if he sue out execution without leave, the court will set it aside for irregularity; the rule is, in the first instance, only a rule to shew cause. The sheriff must give full and actual possession; if he meet with any obstruction he may call out the posse comitatus to assist him. If the recovery be of a house, he may justify breaking open the door. If the lessor recover several messuages in the possession of different persons, the sheriff must go to each of the several houses, and severally deliver possession thereof, (which is done by turning out the tenants,) for the delivery of the possession of one messuage, in the name of all, is not a good execution of the writ; since the possession of one tenant is not the possession of the other b. But when the several messuages are in the possession of one tenant only, it is sufficient if he give possession of one messuage in the name of all. After possession once given under a writ, the plaintiff cannot sue out another writ of possession, though he be disturbed by the same defendant, and though the sheriff have not yet returned the former writ d. If the lessor 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; and when the judgment is against the casual ejector, the tenant must be joined in the write. By the execution of the writ of possession growing crops will pass to the lessor of the plaintiff, although previously seized under a fi. fa. against the tenant, if the day of the demise be prior to the issuing of such fi. fa., for they cannot be said to belong to the tenant, who was a trespasser from the day of the The sheriff must give full possession. demise a. Where several crops were taken under an habere facias possessionem, issued in an ejectment brought against a tenant for holding over, the court refused a rule for the lessors of the plaintiff to pay over the value of them to the defendant after deducting the amount of rent due 1. SECTION XVI. How costs are reco verable. Who is liable to pay costs. COSTS. WHEN the action is undefended, and judgment is entered against the casual ejector, the only remedy which the lessor of the plaintiff has for his costs, is an action for the mesne profits, in which they are recoverable as consequential damages. When the tenant appears and enters into the consent rule, and afterwards at the trial refuses to confess, he is liable, upon such consent rule, to the payment of costs, and an attachment may be issued against him if he refuse or neglect to pay them". When the tenant appears, and there is a verdict and judgment against him, execution may be taken out thereon for the costs, as in ordinary cases. If there be several defendants, some of whom appear at the trial and confess, but others do not appear, and a verdict is found against those who do appear, each defendant is liable for the whole costs, and the plaintiff's lessor may tax them all against any one or all of the defendant's at the same time a. In ejectment, the court will compel the real defendant to pay the costs, although he is not a party on the recorde. Therefore 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, by which a verdict in one was to govern the others. The plaintiff having obtained a verdict against one of the tenants, who was a pauper, the court held, that the landlord was liable to pay the costs of that one a By Reg. Gen. H. T. 2 W. IV. reg. 74, no costs shall be allowed on taxation to a plaintiff upon any counts or issues on which he has not succeeded; and the costs of all issues found for the defendant shall be deducted from the plaintiff's costs." This rule extends to give to defendant the costs of an issue found for him on a demise in ejectment, which the lessor of the plaintiff abandoned at the trial, though the evidence was equally applicable to the demise upon which he succeeded. It is not necessary under the terms of the rule, that the costs should be confined exclusively to the issue found for the defendant; but the question of amount is entirely a question for the master, with which the court will not interfere b. Where there was but one count, and the lessor of the plaintiff recovered judgment for part only of the lands claimed, the defendant succeeding as to the chief question in dispute; held, that the defendant was entitled to have his costs, as to the part found for him, set off against the costs of the lessor of the plaintiff c. Where twelve defendants entered into a joint consent rule; shortly before the trial, by a judge's order, two were permitted to withdraw their plea, and suffer judgment by default. At the trial, the two did not appear when called on; held, that the plaintiff was entitled to a general judgment against all the defendants, they receiving the costs of that defence which, as to a part of the premises, was successful d. When a verdict is found for the defendant, or the plaintiff is nonsuited for any other cause than the defendant's not confessing lease, &c., the defendant must tax his costs on the postea as in other actions, and sue out a ca. sa. or a fi. fa. for the same against the plaintiff, and if upon shewing this writ under seal to the lessor, serving him with a copy of the consent rule, and Thrustout d. Jones v. Shenton, id. 110. Doe d. Smith v. Payne, or Webber, 1 Harr. & Woll. 10. 2 Ad. & Ell. 448. 4 N. & M. 381. Doe d. Errington v. Errington, 1 H. & W. 502. 4 Dowl. 602. d Doe d. Bishton v. Hughes, 1 Gale, 263. 2 C. M. & R. 281. demanding the costs, the lessor do not pay them, the court will, on an affidavit of the facts, grant an attachment against him a. When there are several defendants, the lessor of the plaintiff has his election to pay costs to which defendant he pleases b. If the plaintiff proceeds under 1 Geo. IV. c. 87. s. 1, and is nonsuited on the merits, or has a verdict pass against him, the defendant is entitled to double costs ". SECTION XVII. WRIT OF ERROR. A WRIT of error cannot be brought in the name of the casual ejector, and if the defendant refuse at the trial to confess, &c., he will be precluded from bringing error, because the plaintiff will then be nonsuited as to him, and the judgment will be entered against the casual ejector d. By 16 & 17 Car. II. c. 8. s. 3, 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 sume 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. Though the words of the statute seem to require that the plaintiff in error should be personally bound, yet by a reasonable construction it has been held to be sufficient if he procure proper sureties to enter into recognizance. Although the sureties may be examined as to their sufficiency, the plaintiff in error cannot; and 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 for more e Adams, 337. Jordan r. Harper, Stran. 516. Adams, 348 By 11 G. IV. & 1 W. IV. c. 70. & 8, all writs of error, from any of the superior courts, are to be returnable only in the Court of Exchequer Chamber in the first instance. This reasonable sum is double the yearly value, and double costs of the action. Reg. Gen. H. T. 2 W. IV. Keen d. Lord Byron . Deardon, 8 East, 298. |