Of Misdemeanors in Possession.
In Ejectment Declarations were delivered, and on Verdict Evidence was found for the Plaintiff against some, and Judgment against the Casual Ejector for others, in the whole 47 Houses. Upon colour of Hab. fac. pos∣sessionem, the Sheriff turns out of Possession these 47 Tenants, and 80 other Tenants also without any Process or Plea against them, for the Execution of which Writ the Sheriff took of the Plaintiff 200 l. for Fees. 1. The Court would not grant any. Writ to supersede this Execution against the 80, for if so then it ought to be Quia erronicè, and there was not any Error in the proceedings against them, because there was no procee∣dings against them, but they may bring Trespass against the Sheriff,* and the Sheriff shall be indicted for Extortion; for they cannot take such Fees in case of real Estate as personal, 2 Sid. 155.
There is a remarkable Case in Siderf. 254. the King against Farr. Farr being a Sollicitor, had obtained a Judgment against the Casual Ejector, upon which he Sues Hab. fac. posses∣sionem, and the Sheriffs Bay liffs enter the House with him, and break the Door where the Goods were, and take the Woman to whom the House and Goods belonged, and required of her Special Bayl, and for want of it brought her to Newgate; then Farr took the Goods which were of great value. And upon Tryal at the Old-Bayly it appeared, Page 250 That Farr did this with intent to take away the Goods, and had no colour of Title to the House for his Client. He was found Guilty of Felony, and was hanged, not be∣ing able to Read tho' he were a Sollicitor.
The Court was moved for an Attachment against J. upon an Affidavit, that he had ejected one out of Possion that was put in by Hab. fac. possessionem, and that in a very Riotous manner, and had imprisoned the Party so put out of Possession. The Coun∣cil on the other side answered, That the party came into the Land by vertue of an Eigne Judgment, and an Extent upon it. Rolls, here is Title against Title, therefore take your Course in Law, for we make no Rule in it, Stiles p. 318. Fortune and Johnson's Case.
Verdict for the Plaintiff was found in Ejectment. But upon Agreement made be∣tween the Plaintiff and Defendant, The Defendant was to hold the Land recovered, for the remainder of his Term to come, and according to this Agreement he held it for two years; but afterwards before his Term expired, the Plaintiff takes out an Hab. fac. possessionem and executes it. It was moved, That the Defendant might have a Rule for Restitution. Per Cur. it cannot be: Take your Action on the Case against the Plain∣tiff, for not performing his Agreement, Stiles Rep. 408. Wood and Markham.
