Chipman v. Sawyer

Opinion of the Court,

The Chief Judge delivered the opinion of the Court. Hall absente.

The Court consider all the exceptions in demurrer to have been well taken.

Although executor may bring his action for an ejectment in the life of the testator, yet the ouster counted upon in the record spread before us, was subsequent to the decease of the testate, and the lease specified is made with the executor and not with the testate in his life-time, and by the existing laws the action should have been in the name of the heirs.

The Court likewise consider the execution, Darius Chipman v. Janna Churchill, to have been illegally issued ; consequently the commitment under it is illegal, and the sheriff not responsible for any escape f'ither negligent or voluntary.

*103The Court further consider, that the nominal plaintiff in ejectment cannot maintain this action. There has been great diversity of opinion in England upon the rights to be imputed to the nominal plaintiff in ejectment; and the practice in this State has neither been uniform or settled, but productive of endless embarrassment. To render the course of justice plain, the Legislature have very wisely, by a late statute, abolished this ancient mode of bringing ejectment, with all its fictions, and substituted a mode grounded upon the principles of the writ of assise of novel disseisin ; a mode simple in its nature, which, sets forth the plaintiff’s claim with brevity and precision, enables the defendant to know and prepare his proper defence, and renders the subject in controversy readily reducible to legal issue without those tedious preparatives which encumbered the record in the former action. But the Court, in their decision on this point, are directed by the existing laws, which governed the prior action of ejectment, Under the old regimen it was the object of this Court to divest the action of ejectment of its fictions as far as was any wise consistent with the form of the action which had been directed by statute, to consider the nominal plaintiff as merely nominal, as giving a mere docket name to the suit. Therefore no action for mesne profits has ever been sustained in this name; and if it was used as plaintiff in execution, or in the writ of habere facias possessionem, it was merely introductory to the name of the lessor, and for his use. The lessor of the plaintiff was put into possession by the sheriff, and so he returned on the writ. He also governed the writ of execution, and by his receipt it might be *104discharged. If the execution issued against the nominal plaintiff, it was merely as a preparatory step to bring a writ of scire facias against the lessor.

In the present case, a writ of scire facias should have been brought upon the judgment in the name of the lessor, and it should have been allegated, that the lessor recovered the judgment in the name of the nominal plaintiff, and the guare should have been, to shew cause why an execution should not issue upon the judgment in his own name ? and the Court would not have suffered the allegation to have been traversed. The maxim of the English civil code, “ exfctione legis oritur jus,” must not be perverted to embarrass justice.

There seems to be some difficulty in ascertaining the intention of the Legislature as to where the liability attaches in the case of a person arrested on execution in one County, and imprisoned in another. But upon a full investigation of all the statutes, it is the opinion of the Court, that the liability in this case does not attach to the sheriff of Chittenden County, the present defendant. Whether it attaches to the sheriff of Franklin County, may admit of some doubt.

It is therefore considered by the Court, that the declaration is insufficient, and that defendant have his costs.