English Reports in Law and Equity Volume 5; Containing Reports of Cases in the House of Lords, Privy Council, Courts of Equity and Common Law and in the Admiralty and Ecclesiastical Courts, Including Also Cases in Bankruptcy and Crown Cases Reserved, [185 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1851 Excerpt: ...are not in accordance with the register, they are contrary to law. In Sellon's Practice it is said to have been the uniform course in Westminster Hall. But not for many years. In Doe d. Williams v. Williams, 2 Ad. & El. 381, Lord Denman, C. J., said, p. 386, that the order to restore possession " should have been made upon the party, not the sheriff." He also cited Doe d. Stephens v. Lord, 7 Ad. & El. 610; 2 Nev. & P. 605; 6 Dowl. 256. Erie, J. Those cases are rather against you; the writ does not appear on record in the case of an indictment for a forcible entry. But the record is in a state which shows that the party is entitled to it; and it is the duty of the justices to restore possession to the party, but not. by writ. Erie, J. There may be a writ of restitution in favor of a prosecutor, though the right does not appear on record. In Lill. Pr. Reg. 577, it is said that a writ of restitution is not properly to be granted, but in such case where the party cannot be restored by an ordinary way of justice or course of law; for where ordinary remedies may be had, extraordinary are not to be resorted to. That passage is strong to show that the writ may issue in this case. Qut acv vui Lord Campbell, C. J., now delivered the judgment of the court. We think the rule in this case ought to be discharged. The established practice has been, .that when a judgment in ejectment has been irregularly obtained, and possession has been delivered under it to the lessor of the plaintiff, the court will, in the first instance, grant a rule upon him for restoring the possession; but if that rule becomes ineffectual by reason of the lessor having absconded, a writ of restitution is awarded. In Doe d. Williams v. Williams, 2 Ad. & El. 381; 4 Nev. &...