Smith v. Amys

Decided July 1, 1793

JUDGMENT being given in an ejectione firmæ, a writ of error was sued before the writ of inquiry was awarded, or returned. For the judgment is quod quærens recuperet terminum; and on this judgment the plaintiff may maintain an hab. fac. poss. If the writ of error did not lie in this stage of the suit; the plaintiff after obtaining possession, under an erroneous judgment, would never get a writ of inquiry, and the injured party would be without a remedy.

Decided 1793-07-01

Doderidge, J.

¶1It seems to me it does not lie, because before the writ of inquiry the judgment is not perfect, It in Metcalf’s case, 11 Co. p. 38, in account or partition. Error does not lie before final judgment.

Jones, J. and Clerici curiæ, e contra.

For the judgment is quod quærens recuperet terminum; and on this judgment the plaintiff may maintain an hab. fac. poss. If the writ of error did not lie in this stage of the suit; the plaintiff after obtaining possession, under an erroneous judgment, would never get a writ of inquiry, and the injured party would be without a remedy. See next case. 7 E. 3. 19, 20, 21. a. 32 l. 34 l. 22 E. 3. 6. 7.