The King v Harris
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 91 E.R. 228
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
Pas. 4 Ann. B. R.
15. anonymous. [Pas. 4 Ann. B. R.] Release of plaintiff is a contempt. 2 Bur. 665. The plaintiff in ejectment is a mere nominal person, and trustee for the lessor, and if he release the action, or if an action be brought in his name for the mean profits, and he release it, he has been committed for contempt: per Holt, C.J. (b) (b) To assign the death of the nominal plaintiff for error is a contempt. Moore v. Goadright, Str. 899. In Asiin v. Parkin, 2 Bur. 667, the following description of the nature of this action was given from the unanimous opinion of all the Judges : The nominal plaintiff and casual ejector are judicially to be considered as the fictitious form of an action really brought by the lessor of the plaintiff against the tenant in possession, invented under the control and power of the Court for the advancement of justice in many respects, and to force the parties to go to trial on the merits, without being intangled in the nicety of pleadings on either side. The lessor of the plaintiff, and the tenant in possession, are, substantially and in truth, the parties, and the only parties to the suit. The tenant in possession must be duly served; and, if he is not, he has a right to set aside the judgment. If, after he is duly served, he does not appear, but lets judgment go by default, such judgment is carried into execution against him by a writ of possession. 18A1KELD. ML ENTRY FORCIBLE 229 There ia no distinction between a judgment in ejectment upon a verdict and a judgment by default. In the first case, the right of the plaintiff is tried and determined against the defendant; in the last case ib is confessed. An action for the mesne profits is consequential to the recovery in ejectment. It may be brought by the lessor of the plaintiff in his own name, or in the name of the nominal lessee; and in either shape, it is equally his action. The tenant is concluded by the judgment, and cannot controvert the title. Consequently he cannot controvert the plaintiff's possession'; because his possession is part of his title: for the plaintiff, to entitle himself to recover in an ejectment, must shew a possessory right not barred by the Statute of Limitations. This judgment, like all others, only concludes the parties as to the subject matter of it. Therefore, beyond the time laid in the demise, it proves nothing at all; because beyond that time the plaintiff has alleged no title, nor...
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The King v Harris. [COURTS of KING'S BENCH, CHANCERY, COMMON PLEAS and EXCHEQUER.]
...restitution can be if defendant traverse or plead three years possession. Far. 138. 1 Vent. 265. 3 Salk. 170. Comb. 328. Holt 324, S. C. 3 Salk. 313. 5 Mod. 443. Cases B. R. 268. Comb. Dig. Forcible Entry, D. 7, vol. 4, pa. 211, 3d edit. If an inquisition of forcible entry comes into this C......
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The King against Harris
...the king against harris. On forcible entry, restitution granted after three years set aside.-S. C. Garth. 496. S. C. 1 Salk. 260. S. C. 3 Salk. 313. S. C. Holt, 324. S. C. 1 Ld. Ray. 440, 482. S. C. Corny. Eep. 61. S. C. 5 Mod. 443. An inquisition of forcible entry into the Rectory of Lanti......