Penn v. Klyne

19 F. Cas. 166

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: April 15, 1817
• Status: Published

Opinion

WASHINGTON, Circuit Justice.

The nominal parties to the original suit were the lessee of John and Bichard Penn, and the tenant in possession. The judgment was, that the lessee should recover his term, then unexpired, and his damages, amounting to five hundred dollars. Considering those as parties w-ho appear to be so by the record, there could be no doubt that the conveyance by the lessors of the plaintiff could pass only the reversion, and consequently could hot affect the interest of the lessee. It is trae, that the lessee, and the casual ejector, are merely the actores fabuloe, and that by a fiction, the lessor is considered as being in fact the only plaintiff in the suit But it may well be doubted, whether the fiction ought to be set up for the mere purpose of protecting the defendant who asserts no meritorious ground of defence, but merely seeks to defeat the judgment as to the land, to the benefit of winch a third person is, to say the least, equitably entitled. I say to defeat the judgment, because the scire fa-cias, as well as the habere facias posses-sionem, must issue in the name of the plaintiff in the original judgment. We know that the nominal plaintiff is sometimes considered to be the real plaintiff, as in the case where the lessor of the plaintiff dies after judgment, the execution may issue in the name of the lessee, without the necessity of a scire facias. To use the words of Lord Mansfield, in the case of Doe, on the demise of Beyer, v. Boe, 4 Burrows, 1970: “This is an ejectment brought by John Doe. and the defendant does not show that John Doe, the plaintiff in this action, is dead.” As to the objection on the ground of jurisdiction, there is nothing in it. It is true that in some cases a scire facias is an original action, but, in every case where it issues to revive a judgment, it is a continuation of the original suit, and may issue in the name of the original plaintiff or those claiming as his legal representatives, although such representatives should be citizens of the same state with the defendant. But upon another ground, the court is clearly of opinion, that judgment ought to be given in favour of the plaintiff, upon the present plea. Though the plea, which professes to be an answer to the whole writ, should be considered as giving a sufficient answer to the writ, as to the term in the land, it is certainly no answer to the damages recovered by the judgment; and consequently it assigns no sufficient reason why execution should not issue according to the judgment which stands unim-peaehed. Judgment for plaintiff.