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The statement of the damages in the declaration may include the costs of the ejectment, whether the judgment be against the casual ejector, or against the tenant or landlord.79

3681 The general issue is not guilty. The defendant may also plead not guilty within six years before the commencement of the action, when the plaintiff claims the mesne profits for a longer period than six years before action brought.80 The defendant cannot plead, as a matter of defence, what would have been a bar to the action of ejectment.81 3682. To entitle himself to recover, the plaintiff must prove his

possessory title, the wrongful entry of the defendant, the duration of time during which he occupied the premises, the value of the mesne profits, and other damages to which he is entitled.

3683. The plaintiff may prove his possessory title when the action is between the parties to the prior action of ejectment, and the plaintiff proceeds only for profits accruing subsequent to the alleged date of the demise, by the record of the judgment, which in that case is conclusive evidence of the plaintiff's title and of the defendant's entry and possession from the day of the demise laid in the declaration. If, on the contrary, the plaintiff seeks to recover profits antecedent to the time of the demise laid in the declaration, or brings his action against a precedent occupier, the record in the ejectment cannot be given in evidence, but the plaintiff must prove his title to the premises from whence the profits arose, for without such proof there is no evidence that he is entitled to them.83

3684. The plaintiff is also required to prove the duration of the occupancy by the defendant, or by his tenant, when he is the landlord; this is proved like any other matter in

pays. 3685. He must also prove the value of the mesne profits, that is, the yearly value of the premises during the time of the tortious occupation; the costs of the ejectment; and, provided the plaintiff has specially alleged such claim in his declaration, he may give evidence to the jury of any injury done to the premises in consequence of the misconduct of the defendant.

3686. The defendant may rebut any of the facts which have been adduced by the plaintiff to make him liable when such evidence is not conclusive upon him; for example, he may give evidence to contradict that of the plaintiff where the latter alleges that he was in possession of the premises before the time of the demise in the declaration, and show that in point of fact he had not occupied the premises before that time. The defendant may also show that pending

85 the time laid in the declaration he gave up the possession to the plaintiff, and he will not be liable after that time.

3687. The jury are not confined in their verdict to the mere rent of the premises, although the action be brought to recover the rents and profits of the es

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79 Adams, Ej. 332.
80 Buller, Nisi P. 88.
81 Baron v. Abeel, 3 Johns. N. Y. 481; Jackson v. Randall, 11 Johns. N. Y. 405.

82 Adams, Ej. 334; Van Allen v. Rogers, 1 Johns. Cas. N. Y. 281; Chiral v. Reinicker, 11 Wheat. 280; Lion v. Burtis, 5 Cow. N. Y. 408; Aslin v. Parkin, 2 Burr. 668; Dodwell v. Gibbs, 2 Carr. & P. 615; Posterns v. Posterns, 3 Watts & S. Penn. 182; Den v. McShane, 1 Green, N. J. 35; Poston v. Jones, 2 Dev. & B. No. C. 294; Whittington v. Christian, 2 Rand. Va. 353.

83 Buller, Nisi P. 87; Aslin v. Parkin, 2 Burr. 665; Jackson v. Randall, 11 Johns. N. Y. 405; West v. Hughes, 1 Harr. & J. Md. 574.

84 Adams, Ej. 337; Huston v. Wickersham, 2 Watts & S. Penn. 308; Coach v. Gerry, 3 Harr. Del. 423; Doe v. Perkins, 8 B. Monr. Ky. 198.

85 Vance v. Inhabitants of Cong. Township, 7 Blackf. Ind. 241. 86 Mitchell v. Freedley, 10 Penn. St. 198.

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tate; they may give extra damages if they think proper, such as the circumstances of the case may require. The plaintiff in ejectment recovers the mesne profits down to the time of the verdict.

3688. The judgment follows the verdict, and generally carries costs.

3689. It has been stated that waste is a spoil or destruction in houses, gardens, trees, and other corporeal hereditaments, to the disherison of him who has the reversion or remainder in fee simple or fee tail. To redress this injury there are two remedies: the first, by an action of waste, which is a mixed action, by which the plaintiff recovers the place wasted, and also damages for the injury; the second, by an action on the case for the recovery of damages only.

In modern practice the remedy usually adopted is an action on the case; still, the old action of waste lies in some of the United States, but in others the only remedy is by an action on the case or an injunction.

3690. By the 13 Edw. I, c. 22, the action of waste is given to one tenant in common against another. These words have been construed to include as well joint tenants as tenants in common, for both of them hold in communi.9 And by a subsequent statute, 92 an action of waste is given to the heir for waste done in the time of his ancester as well as for waste done in his own time. A purchaser is considered as coming within the purview of this statute, although it speaks of those who were inheritors. 93

The plaintiff must have the next immediate estate of inheritance in remainder or reversion, 94 for a contingent interest is not sufficient.95

3691. The statute of Gloucester 96 enacts that a man from henceforth shall have a writ of waste in the chancery against him that holds by the law of England, or otherwise, for the term of life, or for the term of years, or a woman in dower 97

When waste was committed by an assignee of a tenant in dower, or by the curtesy, the action, if brought by the heir of the husband or wife, must be against the original tenant, because the assignee iş considered only as his bailiff or servant. In case, however, where the reversioner has also assigned his inheritance, and the assignee of the tenant has attorned, the latter is considered as the tenant, and the assignee of the reversioner, the landlord, so that the assignee of the tenant is alone liable for waste done by himself.

When the waste has been committed by a stranger, still the lessee will be liable for waste, for it is his duty to prevent waste by the stranger, and he may recover in trespass against him.98 It seems to be the policy of the law to make the lessee liable for waste, whenever he could or ought to have prevented it. If any lessee for life or years commits waste, and afterward assigns his whole estate, the action of waste lies against the original tenant, and the place wasted may be recovered from the assignee, though he is not a party to the suit, the title of his assignor having been forfeited previous to the assignment."

87 Goodtitle v. Tombs, 3 Wils. 118; Contra Hanna v. Phillips, 1 Grant, Cas. Penn. 253; Holmes v. Davis, 19 N. Y. 488.

88 Dawson v. McGill, 4 Whart. Penn. 230. 89 Before, 2397. 90 See Shult v. Baker, 12 Serg. & R. Penn. 273 ; Sackett v. Sackett, 8 Pick. Mass. 369; Findlay v. Smith, 6 Munf. Va. 134; Bright v. Wilson, 1 Cam. & N. No. C. 21 ; Shepherd v. Shepherd, 2 Hayw. No. C. 382; Carver v. Miller, 4 Mass. 559; Randall v. Cleaveland, 6 Conn. 328. 91 Bacon, Abr. Waste, G.

92 20 Edw. I, Stat. 2. 93 1 Inst. 53, b, 356 ; 2 Rolle, Abr. 825.

94 1 Inst. 52, 53. 85 Mayo v. Feaster, 2 M'Cord, Eq. So. C. 142. 96 6 Edw. I, c. 5.

97 See Bacon, Abr. Waste, H. as Bacon, Abr. Waste, H, 1.

99 2 Greenleaf, Ev. 8 652.

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3692. The material averments in the declaration are that the plaintiff has a title to the inheritance; this must be averred as fully and correctly as in a writ of entry on intrusion; the demise of the tenant, if there be one, or such other complete title as he may possess; the quality, quantity, and amount of the waste, and the place in which it was committed; as, whether in the whole premises, or in a distinct part of them; and whether it was done sparsim; as, by cutting trees in different parts of a wood; or totally; as, by prostrating an entire building 100

It is also necessary to aver the kind of tenure by which the defendant holds or held; when the defendant holds, the averment may be in the tenet," which he, said Peter, holds," or, when he is no longer in possession, in the tenuit, “ which he held,” and this has a reference to the time when the waste was done, and not when the action was brought. This averment is necessary, because, in the former case, the plaintiff will recover the place wasted, namely, that part of the premises in which the waste was exclusively done, if it were done in one part only, together with treble damages. In the latter case, on the contrary, the tenancy being at an end, the plaintiff will only recover his damages.

3693. The general issue in this action is that the defendant “did not make any waste, sale, or destruction in the messuages and premises aforesaid, as the plaintiff in his writ and declaration hath supposed.” But whether this puts in issue the whole declaration seems doubtful. It is, therefore, proper to plead any matter in discharge specially.102

3694. It is enacted by the statute already cited 10% that he which shall be attainted of waste shall lose the thing which he hath wasted, and moreover, shall recompense thrice so much as the waste shall be taxed at.164 The plaintiff may recover the place wasted, not only when the injury has been total, as the destruction of a building, but also when the waste has been done to separate parts of the inheritance; as, where trees growing sparsim in a close are cut; in an action of waste, all the close shall be recovered. Tos

3695. This action has been superseded by the more convenient action upon the case in the nature of waste.106

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100 2 Greenleaf, Ev. & 652.
101 Bacon, Abr. Waste, K, 1 and 2.

Jackson, Real Actions, 339; Greene v. Cole, 2 Saund. 238, note (5). 103 Statute of Gloucester, 6 Edw. I, c. 5.

104 The statute of Gloucester, 6 Edw. I, c. 5, is in force in Massachusetts so far as to give the action for the recovery of the place wasted, and treble damages, from the tenant for life; except in respect to tenants in dower, respecting whom the law has been altered by the statute. Sackett v. Sackett, 8 Pick. Mass. 309. 105 Anon. Brownl. 240; Coke, Litt. 54, a; Bacon, Abr. Waste, M. Before, 2413.

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CHAPTER XXVII.

SCIRE FACIAS.

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3697. Definition.
3698. The form of the writ.

3699. Out of what court the writ must issue.
3700-3716. When a scire facias is the proper remedy.
3701-3714. Scire facias on judgments.
3702-3708. Between the original parties.

3703. On judgments after a year and a day.
3707. On demands arising after judgment.

3708. For the purpose of reaching further effects.
3709–3714. When there has been a change of parties.

3710. Changes caused by marriage.
3713. Changes by bankruptcy and insolvency.
3714. Change of parties by death.
3715. Scire facias on recognizances.
3716. Scire facias on other records.
3717. The pleadings.
3719. The evidence.
3721. The trial.
3722. The judgment.

3696. After having considered the nature and requisites of personal actions arising ex contractu and those arising ex delicto, and of the mixed actions of ejectment and waste, the next object which will deserve our attention will be the action of scire facias ; and this will complete the view which it was necessary to take of actions at law.!

3697. A scire facias is the name of a writ founded on some record, and requiring the defendant to show cause why the plaintiff should not have the advantage of such record, or when it is issued to repeal letters patent, why the record should not be annulled and vacated.?

The scire facias is sometimes called a new action and sometimes a continuation of the former action. It is considered in the nature of an action because the defendant may plead to it;3 it is an original action when it is issued on a recognizance, or to repeal a patent, and the like, there being no action on which it can then be founded; but when brought to revive a judgment after a year and a day after its rendition, or upon the death or marriage of the parties, it is a continuance of the action ;' where, therefore, an interlocutory judgment was obtained against a testator, and pending that action the testator's attorney

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See generally, Bacon, Abr. Scire Facias, Execution, H; 11 Viner, Abr. 1; 19 Viner, Abr. 280; Comyn, Dig. Pleader, 3, L; Dane, Abr. Ch. 190; Tidd, Pr. 982.

Graham, Pract. 649; 2 Tidd, Pr. 982; 2 Sellon, Pract. 187; 2 Archbold, Pract. 76; Bacon, Abr. Scire Facias, in pr.; Comyn, Dig. Pleader 3, L.

Coke, Litt. 290; Potter v. Titcomb, 13 Me. 36; Andress v. The State, 3 Blackf. Ind. 110; Pickett v. Pickett, 2 Miss. 267; Blacknell v. The State, 3 Ark. 320; see Ryder v. Glover, 4 Ill. 547; Bentley v. Sevier, 1 Hempst. C. C. 249. Dane, Abr. Ch. 190, & 8.

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agreed that no writ of error should be brought, and after his death, a scire facias was brought against his executors, the court held they could not bring a writ of error, because they were bound by the agreement of the testator's attorney, as the scire facias was not a new action, but only a continuance of the old one."

Our inquiries in this chapter will relate to the form of the writ; out of what court the scire facias must issue; when it is a proper remedy; the pleadings; the evidence; the trial and judgment.

3698. As the scire facias in many cases stands in the place of a declaration, it must contain such recitals and state such facts as will authorize the court to give a judgment upon it ;ó a scire facias to revive a judgment must, therefore, state that although a judgment was given for the plaintiff, yet execution of the debt and damages still remains to be made, and commands to the sheriff to make known to the defendant that he be in court at the return day, to show cause why the plaintiff ought not to have execution against him for the debt and damages according to the form and effect of the recovery; this writ must pursue the judgment; if a joint judgment be obtained against two, the scire facias must be against both; when there is a material variance in setting out the judgment, it will be fatal on nul tiel record.

When the writ is issued on a recognizance, it must state a cause of action with as much precision as a declaration ; therefore the condition of the recognizance must be set forth, and a breach must be shown. It is fatally defective

a if it omit to aver that the recognizance was acknowledged before an officer properly authorized to take it.8

3699. The writ must issue out of the court in which the record has been made, if the record remains there,' or if it has been removed, out of the court where the record is,o for no other, in general, has jurisdiction, unless specially authorized by statute ;" but in some cases a scire facias is issued upon certain records which are not entered in the court whence the writ issues ; in these cases the statute law authorizes the issuing of the writ. For example, a scire facias on a municipal claim is an original, not a judicial writ, and does not necessarily issue from the court in which the claim is filed.12

A scire facias on a recognizance cannot be issued by the court to which a cause has been appealed, but must issue from the court below. 13

3700. In real actions, when land was recovered, and a year and a day elapsed before execution was taken out, the demandant might, after that time, have taken out a scire facias to revive the judgment, because the judgment being particular quoad the land, with a certain description, the law required that the execution of that judgment should be entered upon the roll, that it might be seen whether execution was delivered of the same thing of which judgment was given; and, therefore, if there was no execution appearing on the roll, a

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6 Wright v. Nutt, 1 Term, 388.

* McVickars v. Ludlow, 2 Ohio, 246; Toulmin v. Bennett, 7 Ala. 220; Prather v. Munro, 11 Gill & J. Md. 261.

? Hicks v. The State, 3 Ark. 313.
8 Madison v. Commonwealth, 2 A. K. Marsh. Ky. 131.

Comyn, Dig. Pleader, 3, L, 3, State v. Kinne, 39 N. H. 129; State v. Brown, 41 Me. 535.

10 Tidd, Pract. 1007: Osgood v. Thurston, 23 Pick. Mass. 110; Tindall v. Carson, 1 Harr. Del. 94, see Baron ^. Pagles, 6 Ala. N. 8. 422; Heath v. Tyson, Wright, Ohio, 442. As, for instance, where the record has been removed by certiorari. Register v. Layman, 5 Harr. Del. 349.

11 Treasurer v. Erwin, Brayt. Vt. 218; Vallance v. Sawyer, 4 Me. 62; Carlton v. Young, 1 Aik. Vt. 332, Boylan v. Anderson, 2 Penn. 529; Wilson v. Tiernan, 3 Mo. 577.

12 Schenley v. Commonwealth, 36 Penn. St. 29. 13 Jones v. McLaurine, 7 Jones, No. C. 392. VOL. II.-3 G

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