Doe against Wright
| Jurisdiction | England & Wales |
| Judgment Date | 22 June 1839 |
| Date | 22 June 1839 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 289
IN THE COURT OF QUEEN'S BENCH.
doe against wright. Saturday, June 22d, 1839. Trespass for mesne profits between 10th July 1826 and the commencement of the suit. Pleas. 1. That plaintiff was not possessed of the premises modo et forma. 2. That the premises-were the soil and freehold of defendant during all the time, &c. Replication, by way of estoppel, to each plea, that, after 10th July 1826, plaintiff commenced an action of ejectment for recovery of the same premises on a demise laid 10th July 1826 for fourteen years, and a demise laid 26th December 1831 for seven years, and an ouster on 27th December 1831, and had judgment to recover his said terms; concluding with a prayer of judgment if defendant ought, during the said terms, to be admitted, &c. Held, on general demurrer, that the replication was good : and that a rejoinder, stating that no writ of execution was ever issued, (a)1 4 Mann. & Ry. 569. It is said there, in the judgment of the Court, that the two ejectments were brought against different defendants. (o)2 Before Lord Denman C.J., Littledale, and Patteson Js. (c) Bewn v. Denn dem. Mortimer, Barnes, 180. (a)s See, as to the second point, Doe dem. Standish v. Roe, 5 B. & Ad. 878. K. B. xlii.-10 290 DOE V. WRIGHT 10 AD. *E 764. nor had plaintiff ever had possession of the premises, but that a writ of error upon the judgment was still pending and undetermined, was bad. The plea of liberum tenementum admits a sufficient possession of the plaintiff to support an action against a wrong doer, but denies his rightful possession, and asserts a right to immediate possession in the defendant. [S. C. 2 P. & D. 672. Adopted, Bwnaby v. Earle, 1874, L. E. 9 Q. B. 492: Paries v. Began, [1903] 2 Ir. E. 650.] Trespass for mesne profits. The declaration (13th June 1837) complained of a breaking and entering, to wit on 10th July 1826, into the plaintiff's manors of Hornby and of Tatham, with the tithes and appurtenances, and the rectory of the parish of Tatham, and the tithes thereof, of the plaintiff, and other lands in the county of Lancaster, and expelling plaintiff from his possession thereof, and keeping and continuing plaintiff so expelled until the commencement of the action, and, during that time, taking the rents and profits thereof to defendant's own use. Pleas. 1. That plaintiff was not possessed of the manors, rectory, tithes, and premises in the declaration mentioned, or any, or either of them, in manner and form, &c.: conclusion to the country. 2. As to breaking and entering the manors of H. and T., and the other lands (omitting the tithes and rectory), and expelling plaintiff from the possession [764] thereof, and keeping him so expelled for the time in the declaration mentioned ; that the same are, and were during all the time above-mentioned, the close, soil, and free hold of defendant, &c. Verification. 3. As to breaking and entering the tithes and rectory, that the same are, and were during all the time, &c., the freehold of defendant, &c. Verification. Replication to the first plea, that defendant ought not to be admitted to plead the said plea, because, after the said 10th July 1826, to wit in Trinity term 2 W. 4, in the Court of our late lord the King before the King himself, George Wright, the defendant in this suit, by the name of George Wright, late of H. in the county of Lancaster, yeoman, was attached to answer John Doe (a), the plaintiff in this suit, wherefore the said G. Wright, with force and arms, broke and entered the manor of Hornby in the county of Lancaster with the appurtenances, and all the tithes arising therein ; and the manor of Tatham with the appurtenances in the same county; and the rectory of the parish church of Tatham in the said county, and all the tithes within the said rectory and parish, which one Sandford Tatham had demised to the said John Doe for a term which had not then expired ; and also wherefore the said George Wright, with force and arms, broke and entered a certain " other " manor of Hornby in the county of Lancaster (repeating exactly the same premises as before), which the said Sandford Tatham had demised to the said John Doe for a certain other term, not then expired : and thereupon the said John Doe complained (stating a declaration in [765] ejectment on a demise of the first-mentioned premises on July 10th, 1826, and a demise of the secondly mentioned premises on 26th December 1831, for the terms of fourteen and seven years respectively, and an ouster of plaintiff by the defendant from the several premises on 27th December 1831, the said several terms therein, and each of them, then and at the time of the said complaint being unexpired; plea of not guilty, and issue thereon; trial at the Assizes at Lancaster, August, 7 W. 4; verdict for plaintiff, and judgment of the Court of King's Bench in Michaelmas term, llth November 1836): whereby the said John Doe recovered against the said George Wright his several terms aforesaid, then yet to come, of and in the several tenements aforesaid with the appurtenances, together with his damages, costs, and charges, &c.; as by the record and proceeding thereof, remaining in the said Court of King's Bench in full force and effect, more fully appeared. Averment, that the manors of H. and T. with the appurtenances, the tithes, rectory, &c., in the declaration mentioned, were respectively the same with the manors, tithes, rectories, &c., mentioned in the said recovery, record, and proceedings, and not other or different. Prayer of judgment if defendant, during the said terms in the said record mentioned, ought to be admitted to the said plea, contrary to the said recovery, record, and proceedings. (a) As to former proceedings between the present parties, see Wright v. Doe dem. Tatham, 1 A. & E. 3. Same v. Same, 7 A. & E. 313. Same v. Same, 4 New Ca. 489. In 7..A. & E, p. 336, line 12, for 1836 read 1837. MiD.tE.7M. DOE V. WBIGHT 291 Replication to the aecond and third pleas, that defendant ought not to be admitted to plead the said pleaa or either of them, because, &c. (stating the action of ejectment on two demises, the pleadings, verdict and recovery exactly as on the replication to the first plea, with a similar averment of identity, and conclusion). Eejoinder to the replication to the first plea; that [766] the defendant ought to ba admitted to plead the said plea, because heretofore, to wit on 2d November 1836, a writ of error was duly issued out of Chancery by defendant, to remove a transcript of the record and proceedings in the ejectment suit, mentioned in the replication, into the Exchequer Chamber. That the said writ of error was duly allowed on 2d November, and was a supersedeas to all writs of execution upon the said judgment; and that no writ of execution ever issued at any time upon the said judgment, nor was the said John Doe ever in possession of the premises in the said declaration and replication mentioned, or any of them, or any part thereof. That the said record and proceedings were afterwards duly certified by the Chief Justice in a transcript annexed to the writ of error, and delivered to the justices and Barons in the Exchequer Chamber; which said writ of error, at the commencement of this suit, was in the said Exchequer Chamber duly deposited with, and in the hands of, the proper officer in that behalf, and in full force and effect, and the proceedings thereon pending and undetermined; and that, after the commencement of this suit, to wit on, &c., the said judgment was affirmed ; and thereupon, to wit on, &c., a writ of error was duly issued out of Chancery, reciting the said affirmance of the said judgment, and commanding the Chief Justice of the King's Bench to send the record and process of the said plaint into...
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