Jackson v. Hasbrouck — 5 Johns. 366

Majority

p. 366

Jackson, ex dem. Ostrander and another, against Hasbrouck.

Headnote

In an action of ejectment, where the defendant alleges that the lessor of the piamtiff has taken possession of more land than was recovered by eomtw'iu order hui where ‘ the the ISproperfUl> course is to award a icigned issue to try the question.

E. WILLIAMS, for the defendant,

moved for a writ of restitution in this case, on an affidavit, that the lessors of the plaintiff, had taken possession of more land ¿ban was recovered by the verdict. (See 3 Johns. Rep. 331 . )

Sudani, contra,

read an affidavit, denying that the les™ sors had taken possession of more land than they were enthled to by the verdict; and the question seemed to be about one of the boundaries, called Schutt’s line,

We grant the motion*; unless the les» sors of the plaintiff will elect by the first day of the next

p. 367

term to have a feigned issue, in order to try the fact in controversy. This seems to be the course of proceeding in the English courts, when the fac't is doubtful whether the lessor has taken possession of more land than he has recovered, or not. (5 Burr. 2673.)