Jackson ex dem. Eden v. Rathbone

L. Mitchell, for the plaintiff,

moved for a rule upon the Sheriff, requiring him to execute the hab.fa. poss. either according to the direction of the plaintiff’s attorney, or to the extent of the description in the special verdict, which, as he contended, covered the premises of which the plaintiff sought to obtain possession. He produced an affidavit, shewing that the plaintiff’s attorney had pointed out certain premises to the Sheriff, lying in the ward mentioned, which were in the tenant’s possession when the suit was commenced, and of which the plaintiff claimed possession under the writ, and that an indemnity was offered to the Sheriff, &c. He also produced various affidavits, maps, &c¡ and a bill in Chancery, filed by one of the defendants, from which he contended that, upon a true location under the special verdict, the premises pointed out were included in it. But whether this were so or not, he contended that the Sheriff should have gone on according to the direction of the plaintiff’s attorney. It is too late for the defendants to come in, after having pleaded and gone to trial, and say that the recovery is a nullity, because the tenant was not in possession of the subject matter of the ejectment. The proceedings in

The extent of the defendant’s possession cannot be controlled by the verdict, though we admit that it may be by other considerations. The judgment is for the term yet to come, of and in the premises aforesaid—not the lands described by the verdict. but the declaration. The Sheriff must depend on the information of the plaintiff. We admit that he is entitled to an indemnity against any liability which he may incur by reason of the information being mistaken or false. This has been offered and declined. We do not wish the Sheriff to act without indemnity, either by a bond with sureties, or the advice and protection of the Court. In this fictitious action,” says Ld. Mansfield, in Cotting ham v. King, (1 Burr. 629) “ the plaintiff is to shew the Sheriff, and is to take possession at his peril of only what he has title to. Ifhe takes more than he has recovered or shewn title to, the Court will, in a summary way, set it right.” Again: in Connor v. West, (5 Burr. 2673) the same Judge remarks, that, “ in truth and in fact, the Sheriff delivers possession at the shewing of the plaintiff, and at the peril of the plaintiff, who is, at his peril, to take possession of no more than he was entitled to. I remember an issue directed, to try whether the Sheriff bad delivered possession properly, according to the recovery.” In Roe Dawson. (3 Wils. 49) the ejectment was for § of a cottage, and the Sheriff having delivered possession of the whole, the Court made a rule upon him to re-deliver possession of f- to the defendant. In Denn v. Purvis, (1 Burr. 326) it was held that the plaintiff must take according to his title, though the declaration demand more. The judgment is, that the plaintiff recover his term in the whole premises, not merely a moiety, though the ejectment be against two defendants, and one of them die, after issue joined, but before trial. (Farr v. Denn, id. 362, and vid. 2 Sell. Pr. 121.) The case of Jackson v. Van Bergen, (1 John. Cas. 101) shews how little the verdict is to be regarded, in determining the extent of the possession to be taken. The verdict for the plaintiff was general for the whole premises, but the evidence on the trial related

C. Griffin W. Slosson, contra,

proposition that, in general, the Sheriff is bound to deliver possession to the plaintiff according to his directions; but this is a prerogative of the plaintiff which the Court will watch with jealousy. Suppose a recovery, in fact, for but 300 feet in this city, but the plaintiff claiiris 10 acres ; would not the Court restrain him ? Has he a right to take possession, and put the defendant to a summary application to reclaim it ?. One mode of restricting this right is, by proof at the trial. (Brookes v. Baldwyn, Barnes, 468.) And such is, the doctrine o,f Jackson y. Van Bergen, cited on the other side. There behg a general verdict, the Court went to the evidence upon the trial to determine its application. . When the verdict is special, there is no need of this. The result of all the proof on the' trial is given by the verdict; and, where the premises are specifically described, as here, you pannot travel out of it. It is the finding of (he jury, under the direction of the Court, and must be taken as undeniably true, between the parties, not only in the immediate suit, but in aR others. It is, in itself, an estoppel upon both parlies. Will it admit of question, that such a verdict cannot be overthrown by affidavit ? in Roe v. Dawson, cited for the plaintiff, the Court say, iu terms, “ the writ ought to have pursued the verdict and, because it,did not, the possession was restored. The verdict there was for f. only, and, quoad, hoc, it was special. Denn v. Purvis, also cited for the plaintiff, maintains the same doctrine. It is denied that this judgment is on the special verdict, and insisted that it refers to the declaration. Is it meant by this, that the plaintiff will be entitled to take, ■ the whole 5 acres ? It is not pretended that the tenant was ever in possession to that extent. Then the declaration canx be no guide. • The jury say, they fry the title to certain property marked upon the map which makes a part of their verdict ; and the Court are asked "to execute that verdict upon other land, on the same map, which was not in the defendant’s possession; because the verdict is alleged to he inac

It is conceded, that the generality of the declaration may be restrained by the proof at the trial, and the extent of the defendant’s possession—a fortiori, may it by the description in the special verdict. What is the object of the writ ? It is to carry into effect thé judgment of the Court alone. This judgment is rendered upon the description of the special verdict. You cannot go beyond this, even though the defendant may have admitted, in the clearest terms, that it was too narrow. You might as well send out execution for double the amount of a judgment in debt, because the defendant had admitted that, by mistake, the judgment was too »small by one half. It is not enough to say, that the Court will correct the plaintiff if he grasps too much. They ought not to sit still and see an injury committed, because they have the power to redress ft. Preventive justice is, in these cases, the most useful and important, and it accords with the course of the Court. Such was the case of Jackson v. Van Bergen, (1 John. Cas. 101 ; 7 T. R. 118, note, S. P.) The counsel examined the affidavits, maps, and other proofs before the Court upon the motion, as to the location of the special verdict, and contended that it covered nothing of which the tenant was in possession ; and that, therefore, the writ of possession could have no effect whatever. They concluded by citing the following additional authorities, as to the conclusive nature of a record and special verdict: Witman v. Earl of Derby, (1 Wils. 55) Jenks v. Hallet . ( 1 Caines' Rep. 64 ) Taylor v. Horde, (! Burr. 114) Crosswell v. Byrnes, ( 9 John. Rep. 287 ) Dunscombe v. Wingfield, (Hob. 262) Phil. Ev. 2d Am. ed, 218; Bradish v. Gee, (Ambl. 2 9) French v. Shotwell, (5 John. Ch. Rep. 564)—and as to the extent of the plaintiff’s right in taking possession upon the writ, 2 Dunl. Pr. 1048.

E. Williams, in reply,