
    Noland v. Seekright Lessee of Cromwell.
    Decided, Oct. 16th, 1818.
    1. Judgment — Dissolution of Injunction to — Necessity-of Scire Facias.— Upon a judgment in Ejectment, if execution of the writ of habere facias posses-sionem be prevented for several years by Injunction, the plaintiff is entitled to the writ on motion upon a rule to shew cause, without a scire facias, provided not more than a year has elapsed since-the affirmance, by the Court of Appeals, of the Decree dissolving the Injunction and dismissing the Bill in Chancery.
    2. Same — Same—Same,—In such case, if the term-laid in the declaration has expired pending the proceedings on the Injunction, the Court to which the motion is made for the Writ of habere facias, possessionem, may cause the term to be enlarged and award the Writ, upon a rule to shew cause, served upon the defendant.
    After a judgment in Ejectment in favour of Seekright lessee of Margaret: Cromwell against Thomas Noland, the following order was made by the Superior Court of Frederick County, on the 4th of October 1814; viz, “On the motion of the plaintiff by his Counsel, and it appearing'to the Court, by the Record, that this case terminated in favour of the plaintiff in the late District Court held at Winchester; and it farther appearing to the Court, that the defendant obtained an Injunction to> stay proceedings on said Judgment; that said case has been many years pending in the Court of Equity, and in the Court of Appeals; that both said Courts decided in favour of the said plaintiff;, and that, within the time of said litigation kept up' and continued by the appeal of the defendant from Court to Court, the term of the-plaintiff’s lease hath expired, a Rule is-granted the plaintiff upon the defendant to shew cause on Friday next, (the 5th day of the present term,) why the term in said lease mentioned should not be enlarged, *and the Commonwealth’s Writ of habere facias possessionem awarded the plaintiff, to cause him to have possession of his term, so to be enlarged, in the premises in the said lease mentioned.”
    
      The Rule being served, (in proof of which an affidavit was filed,) was after-wards enlarged from time to time, for reasons appearing to the Court, until the 9th of May 1815, when it was made absolute ; leave was granted to enlarge the demise laid in the declaration, by inserting the word thirty, in the place of twenty, in the said declaration, so as to make the term of the demise thirty-one, instead of twenty-one years; and a Writ of habere facias possessionem was awarded, to cause the plaintiff to have possession of his term so enlarged.
    To this Order the defendant obtained a Writ of Supersedeas from a Judge of this Court; stating in his Petition the following reasons; 1st, because the said Superior Court had no power after judgment to alter the Record, even if the Judgment had been entered in that Court; there being no clerical mistake, or any thing which should bring the case within the operation of the Acts of Jeofails: — '2d, that, if even the Court had- power to permit such alteration after judgment in the same Court, there was no such power when the judgment had been obtained in another Court: and 3d, because, as more than a year elapsed from the judgment, (the District Courts having ceased to exist much more than a year before the said Rule was obtained,) no writ of possession could be sued out without a scire facias first issuing.
    Wickham for the plaintiff in error.
    Stanard contra.
    The doctrine that a Court of law will not take notice of an Injunction has been exploded in England. Here the execution of the Writ of habere facias possessionem was intercepted by Injunction, and twelve months did not elapse, from the time when the party was at liberty to take out the Writ, before it was actually taken out. 
    
    *Wickham admitted that where the party is delayed by Injunction, he is not put to his scire facias. 
    
    Stanard, to shew the right of the Court to enlarge the term, cited Hunter v. Fair-fax’s devisee, 1 Munf. 218-238, and Vicars v. Haydon, Cowp. 841; in both which cases, the appellate Court itself changed the record by enlarging the term. The demise in Ejectment is merely fictitious: — it is a remedy invented to try the title; is under the control of the Court, and may be modelled so as to accomplish the purposes of justice, 
    
    
      
      Execution — Dissolution of Injunction to — Necessity of Scire Facias. — Where execution has been stayed by injunction, the plaintiff may sue out execution within one year after it shall have been dissolved, without scire facias. Hutsonpiller v. Stover, 12 Gratt. 582, citing principal case as authority. To the same effect, the principal case is cited in Smith v. Charlton, 7 Gratt. 449.
    
    
      
       The Court of Appeals affirmed. In J anuary 1814, tie decree dissolving the injunction and dismissing: the Bill. See 4 Munf. 157.—Note in Original Edition.
    
    
      
       Note. See argumentan Gray’s admx. v. Berryman, 4 Munf. 183-4.
    
    
      
       3 Burr. 1295.
    
   October 16th, 1818, the Court affirmed the Order in question.  