
    Ashby v. Kiger and Others.
    November, 1820.
    Forcible Entry — Injunction of Legal Proceedings--— Equity Jurisdiction. — A court of equity has jurisdiction to stop proceedings at law. to reverse a jndgment on a writ of forcible entry, in* which a second writ of restitution has been granted; the first being lost, without any fault in the plaintiff in equity.
    Same — Same.—Though equity in such a case will stop legal proceedings involving only the right of possession, it will do it, without prejudice to an action to try the right of property.
    Injunction — Release of Errors — Appellate Practice— The Judge failing to direct a release of errors on granting an injunction; this court will respect the principle.
    Ashby brought ejectment in the district court of Moorfield against Kiger and others, for a piece of land in Hampshire; wherein a verdict was found for Kiger and others, designating the boundary line between them and Ashby; Judgment was given for them accordingly: and they proceeding to take possession under the judgment, without any writ of habere facias possessionem, took possession of more than Ashby thought the judgment gave them, or than they had title to. Whereupon Ashby obtained a writ of forcible entry and detainer: and the jury having in that proceeding, bound a verdict in his favour, the possession of the land, of which Kiger and others had unjustly taken possession, was restored to him.
    *Kiger and others then exhibited a bill in the court of Chancery of Staunton, setting forth the matters contained in the record of the ejectment, and the proceeding on the writ of forcible entry and detainer, in the country; complaining of gross injustice in the last mentioned proceedings, but distinctly acknowledging that they had thereby been turned out of possession; not pretending that these proceedings were irregular, but insisting only that they were contrary to equity; and praying, that Ashby might be enjoined from trespassing on the land in controversy, from taking the profits thereof, and that they might be quieted in the possession. 'The injunction was awarded till further order, &c. Ashby answered the bill; and after various proceedings, first in the Staunton, and then in the Winchester Chancery court, the bill was in April 1817, dismissed with costs, but without prejudice, &c. on the ground, that the case was not proper for relief in equity.
    In the long- interval which had elapsed, the sheriff had lost the minutes of the proceedings on the writ of forcible entry and detainer: but the loss being proved to the satisfaction of the magistrate, who had awarded the writ, by the oath of the sheriff himself; the same magistrate thereupon awarded Ashby another writ of restitution ; which was immediatelj' executed.
    Then on the petition of Kiger and others to the Superior court of law of Hampshire, suggesting error in the writ of restitution, a certiorari was awarded, to remove the whole proceedings on the writ of forcible entry and detainer into that court. The magistrate returned that the record of those proceedings were lost.
    And thereupon the present suit was commenced by Ashby in the court of Chancery of Winchester. In this bill, he sets forth the whole history of the controversy as above stated, particularly the loss of the record of the proceedings on the writ of forcible entry and. detainer; and prays, that Kiger and others may be enjoined *from proceeding on their certio-rari in Hampshire Superior court of law, and that he might be quieted in his possession of the land in dispute, till Kiger and others should establish a better title at law. Chancellor Carr refusing the injunction ; it was awarded by a judge of the court of Appeals; and on the 2nd of December, 1817, the Chancellor dissolved the injunction, on the same ground on which he had at first refused it, that the case was not proper for relief in equity. From which decree, Ashby obtained an appeal.
    Heigh for the appellant,
    Said the only point in the case was, whether the Chancellor had jurisdiction. He clearly had, for the proceedings on the writ of forcible entry, are matters in pais; and equity has the same power to relieve against their loss, that it has for the loss of any other muniment of title.
    Ashby must be taken to have been lawfully put into possession of the disputed land, under the judgment; and the appellees ought not to be allowed to avail themselves of the loss of the record, by which he was put into possession.
    Wickham, contra.
    Proceedings on a writ of forcible entry, are not in pais, they are matters of record. And if they were in pais, they are of a criminal nature, and a court of equity has no cognisance of them. Then the party is to be in a better situation by the loss of the record, than if it was preserved. If it still existed, the judgment might be reversed. Here is an attempt in equity to reverse the judgment of a court of law, because the record is lost. It is wholly inadmissible.
    Leigh said the proceedings on a forcible entry were of a civil and not of a criminal nature. They had long lost their original character and were as purely a civil remedy as ejectment.
    
      
      Forcible Entry. — See monographic note on “Unlawful Detainer” appended to Dobson v. Culpepper, 23 Gratt. 352.
    
    
      
      Injunction — Equity Acts Only In Personam. — In strictness, there is no such thing as an injunction to-a judgment, because the court of chancery does not act upon the law court, and neither reverses, rescinds, nor annuls the judgment. It acts upon the party only, restrains him from enforcing a judgment by execution, and punishes him as for contempt for any violation of its mandate. For this proposition, the principal case is cited in Beck-ley v. Palmer, J1 Gratt. 628; Epes v. Dudley, 4 Leigh 148.
      See further, monographic note on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518; monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      lnjustice Caused by Oversight of Court — Relief.—In Bank v. Hupp. 10 Gratt. 36, it is said: “In that case (Pulteney v. Warren, 6 Ves. R. 73), the doctrine is broadly avowed that it is the duty of the court to relieve a party, as far as it can, from the injustice to which the shortness of its proceeding's may have exposed him. Tt is said there to he a principle on which courts of justice should act without scruple, to relieve parties against the injustice that may he occasioned by its own acts or oversights, at the instance of the party against whom the relief is sought. The doctrine of this case is recognized as unquestionable by Lord Redesdale, in T3ond v. Hopkins, 1 Sch. & Let. 413, and by Lord Cotterham, in Sanxter v. Roster, 1 Cr. & Phil. 802, 18 Eng. Oh. R. 302. It is in effect recognized or acted upon in various other cases. Anonymous, 2 Oh. Cas. 217; Ross v. Reid, 8 Gratt. 229; Elliott v. Davis. Dumb. R. 23: Morgan v. Morgan, 2 Dick. R. 613; Grant v. Grant, 3 Cond. Eng. Ch. R. 533; O’Donel v. Browne, 1 Ball & Beat. 263. It is also recognized in 1 Story’s ifiq., $ 514, p. 578; and it was distinctly acted upon in the case of AsKby v. Kiger, Gilmer 153. In that case the chancellor, on granting an injunction to a judgment at law, omitted to require a release of errors. It was held that the party should not be permitted to take advantage of the omission.”
    
   *ROANI5, Judge.

This is an appeal from an order of the court of Chancery at Winchester, dissolving an injunction, obtained by the appellant. Its object was, to restrain the appellees from proceeding on a writ of certiorari, obtained by them, from the Superior court of Hampshire county, to remove into that court, certain proceedings on a warrant of forcible entry and detainer; and that the appellant might be quieted in his possession of the land to which they related, ’till the appel-lees should establish a better title thereto, at law.

Many years ago the appellant brought his ejectment against the appellees, claiming land adjoining that now in controversy: in which action, a verdict was rendered for the defendants, embracing the land now in question, by a designated boundary. The appellees proceeded to take possession of the land, according to the verdict, and thus occupied some land which had been long in the possession of the appellant. To remedy this procedure, the appellant sued out a warrant of forcible entry and detainer; and having obtained a verdict, thereupon the possession of the land was restored to him by the magistrate. After this, it was competent to the appellees to appeal from this decision, (as they have since done,) or to go into a court of equity for relief: but they ought not to have been permitted to harass the appellant in both jurisdictions. The appellees elected to go into a court of equity; complaining of this measure on the part of the appellant, but without charging any irregularity in the proceedings, competent to give jurisdiction to such court. Thej' only prayed, that the appellant might be injoined from taking the profits of the land, and that they might be quieted in the possession thereof. This injunction was granted: but the Judge omitted to require any release of errors in relation to *the proceedings aforesaid ; and by its award, the appellees were again put in possession.

This first injunction after remaining in court many years, was dissolved in April 1817, and the bill dismissed, on the ground, that the case was not proper for relief in equity. On this termination of the cause, the appellant was again entitled to possession. He might have taken it himself in a peaceable manner; but he obtained it by means of a second writ of restitution, awarded by the same magistrate, and he now holds that possession. In thus obtaining that possession, the appellant was in no default. Although the proceedings on the warrant of forcible entry and detainer were lost, whereby the validity of his restitution might have been rendered questionable, they were lost through no default of his. On the other hand, the conduct of the ap-pellees is not free from censure; they now attempt to deprive the appellant of his possession, in a court of law, under the writ of certiorari, after having long contested that possession with him in a court of equity: and they hope to succeed in this, in consequence of the loss of the proceedings aforesaid; a loss which probably resulted from the long delay of the appellees in the court of equity, and a consequent belief in the magistrate, that those proceedings would no longer be wanted. They not only wish to violate a principle always held dear by a court of equity, but also to make use of an advantage, produced by themselves as aforesaid. But for the loss of these papers this course of proceeding would not have been essayed by them. Although the Judge in granting the first injunction did not exact a release of errors at law, this court in adjusting the controversy between the parties, must respect the principle. It will emphatically, respect it, and prevent the resort which is now meditated, under the circumstances which have been detailed. There is another principle which has also its due weight *with the court, and that is, that it is time that this controversy for the mere possession ,of the land, should be put at rest. It is enough that, ratifying the possession where it now is, the appellees should be permitted by their action at law to establish their title to the land. This course while it is adequate to every purpose of justice between the parties, forbids the appellees to profit by their own wrong, and will operate as a bill of peace as to this obstinate contest for the mere possession.

The Judge whose opinion is now before •us, seems to think, that such a course would be an unwarrantable interference with the jurisdiction of another forum. In this we are obliged to differ from him in opinion. It is but the common case, which every day occurs. The tribunal of the court of equity, does not act immediately upon that of the court of law, nor in any manner disrespectful to it: it only acts upon the party, and for good reasons existing in relation to him, restrains him from proceeding further. The Judge seems also to think, that the ap-pellees should not be restrained in this instance, because, on the dissolution of the first injunction, that court informed the parties that the remedy was at law, and at law only. This court concurs with that in this position; but for the reasons assigned, it restrains the appellees from proceeding under their writ of certiorari. It expressly admits and recognises their right to proceed by a new action. It prefers a proceeding which will settle the right, to one which only respects the possession.

The opinion of th.e court, therefore is, that the injunction ought not to have been dissolved; and that on a final hearing, unless the case should be made different from what it now is, it ought to be perpetuated; without prejudice, however, to any action at law which either of the parties may be advised to bring, to establish the boundary *between them. The decree is therefore reversed with costs, the injunction reinstated, and the cause remanded, to be finally proceeded in pursuant to these principles. 
      
      Cabell absent.
     