Jackson ex dem. Thompson v. Stiles — 9 Johns. 391

Majority

p. 391

Jackson, ex dem. Thompson, against Stiles.

NEW YORK,

Oct. 1812.

Headnote

A writ of habeve facias possessionem was issued on a judgment in ejectment, returnable in February, 1811, which was ’executed, turned the plaintiff issued another ¿me ^na^/havin^ '? the mean time, retaken possession of

It was held, that though a year and a day had interveiiscL between the term at writ^vas^ethe second writ no scztuí jadas was revkethe^judgment as the court would presume that the first executio» was on the roil to the time of issuing the second execution,which may be done at any time, being matter only of technical form.

.FISK, for the defendant, moved to vacate a rule obtained in . . . May term, for leave to issue a habere facias possessionem in this cause, and also to set aside the writ of habere facias possessionem, which was tested the 16th May last, with costs. ‘

In August, 1810, the declaration and notice in ejectment was duly served on Isaac Bell, the tenant in possession, and in November term following, a judgment by default was recovered against the casual ejector, which was signed the 26th Novemb e r , and soon after, a habere facias possessionem was issued to the sheriff of Orange, returnable in February term, 1811. The sheriff delivered the possession of the premises, in the absence of the tenant and his family, to the lessor.

e In February last, the wife of Bell and her family retook possession of the premises, without the consent of the lessor. The lessor, in March last, commenced proceedings under the act, for a forcible entry and detainer, but nothing was done by the sheriff * or jury. In May last, the lessor obtained a rule of the court, granting leave to issue another hab, fac. poss. which was accordingly issued, and the sheriff, on the 20th May, by virtue of the writ, turned the wife and family of Bell out of the premises, and * put the lessor into possession. It appeared that Bell, in Septem bel*, 1810, had been sentenced to the state prison for 8 years; but his wife and family had continued on the premises until turned out by the sheriff, and that she and her family returned , •, ..vi the next day to the house.

It appeared that the first writ of hab. fac. poss. had never been returned.

An exemplification of the record was produced, on which no

p. 392

entries appeared to have been made after the judgment and awar5 0f the first writ.

J. Duer, for the plaintiff.

The first writ of possession has never been returned, and though a year and a day has intervened between the term at which the first writ was returnable and the issuing of the second, a scire facias was not requisite to revive the judgment. The first execution may have been continued down en the roll, to the time of issuing the second execution. As this may be done at any time, and is a thing merely of technical form, we will presume it to have been done in this case. Nothing appears to contradict this presumption, and the facts stated show that the party has never had the full fruit of his judgment, and justice and equity require that he should have it.

Motion denied.