Shattuck V8. Tucker. Defendant's counsel. Opinion of the Court. copy from record, that, on the same day, the lessor sold the land in question to the said Jonathan Bates. It was insisted by the defendant's counsel: 1. That the lessor having conveyed on the same day, on which the lease is supposed to be made; and, as the lease is a mere fiction, devised at the time of beginning the action, which, in this case, was long after the supposed date, or time of making the lease, the plaintiff has failed; for though the lease be a fiction, yet there must be a real subsisting title in the lessor of the plaintiff, at the (supposed) time of making the lease, and also at the time of bringing the action. 2. In this case, had there been an actual lease made on the 6th day of September, 1786, yet the lessor having conveyed to the lessee, on the same day, in fee, the lease was merged and gone; so that the plaintiff has not supported his title, in the way he has set it up. The counsel for the plaintiff insisted that, as an ejectment is in form a fiction, designed to try the lessor's title; or rather, to put the real owner into possession; it is sufficient, if it can by any intendment, be made to answer this purpose. As the lease is laid to be made on the same day with the deed of conveyance, it is sufficient to intend, that the lease was prior, on the same day; and such intendment ought to be made in support of the plaintiff's right. As to the merger, that gives the plaintiff a real, instead of a fictitious title. No injustice will, therefore, be done, should he recover. He will be put into possession of his own. But the Court held that the lease, though a fiction, In ejectment must, by possibility be a subsisting lease, at the time of the lease, tho' a fiction, must, bringing the action; at the time of the supposed ouster, by possibility, be a subsisting and at the supposed time of making the lease; the lease. whole is under the control of the lessor, who is the real plaintiff. He is conusant of his own title-to that, he tiff. Shattuck VS. Tucker. The lessor is at He must set forth a lease a which might be must, at his peril, conform his declaration. He must set forth a lease, which might, by possibility, be a good subsisting lease, at the time of the supposed date, or the real plainmaking of the lease; at the time of the ouster, and the time of bringing the action. Here there is merger-the lease is united to and merged in the fee. good, etc." There could not be a subsisting lease, either at the time of the supposed custer, or at the time of bringing the action. If the principle contended for by the plaintiff's counsel should prevail, by carrying back the fiction, in point of time, recoveries might frequently be had, on titles long since extinguished or transferred. In this action the plaintiff is, and must be considered, as mere- right and bene Plaintiff is nominal; all the fit belongs to ly nominal, and all the right and benefit, as belonging the lessor. The Jury found verdict for the defendant. Dec. adjourned term, 1790. WINDHAM COUNTY. Douglass V8. Spooner. In ejectment, the operation of confessed. NORTON, ex dem. A. DOUGLASS 08. ELIAKIM SPOONER. Ejectment for fifty acres of land in Westminster, on the original right of A. Douglass. On trial a deed was produced from A. D., the lessor, to Norton, the plaintiff, dated in February, 1762, acknowledged and recorded June 9th, 1789. In this case the Court held that the operation of the the lease is not lease is not confessed. The proof must be according to the allegation. If the lease be made prior to the conveyance in fee, the lease is merged. If a man take a lease of his own lan 1, the lease is void. The trespass laid is fiction, for which the defendant shall not be punished. The connection between the lessor and the plaintiff, is supported by the fiction of a lease. If that fiction potentially cease, or a fact arise which destroys the possibility of such lease, or destroys its effect, if supposed once to have existed, there can be no recovery. The deed given in February, 1762, and recorded in June, 1787, becomes good from the date by retrospect. Even without recording, it is good against Douglass and his heirs. If a man have a title in fee, he should demand on that title, not on a lease. A plaintiff demanding on bond shall not recover on Plaintiff can- note, or if he demand in his own right, he shall not re not demand on a lease, and re cover in fee. cover in the right of an administrator. Douglass had departed with his right to Norton; Norton has declared on a lease, and proved a title in fee. Douglass VS. He can Spooner. not recover in this action. Verdict for the defendant. N. B.-In January, 1791, Noah Smith, Esq., re signed, and Elijah Paine, Esq., was appointed Judge in his stead. August term, 1791. Chittenden County. Pierson VS. Hovey, &c., On a prison bond. Plea duress, and issue to the Jury. Substance of the evidence. MOSES PIERSON vs. HOVEY & HIBBARD. This was an action on Sheriff's bond for liberty of the prison, and assigned to the plaintiff, the creditor, Plea, duress of imprisonment and traverse. The substance of the evidence was, that the plaintiff had recovered a judgment against Hovey, for 17s.; took out execution, and delivered it to Grant, constable of Charlotte, who took Hovey's cattle, posted and delivered them on receipt to W. and Strong, who left them in Hovey's custody. The cattle was not brought to the post, but were eloigned by Hovey. The plaintiff had the execution returned, without being satisfied, and took an alias, which he delivered to Rich, then constable of Charlotte. Rich made demand of Hovey, who refused to turn out any property, whereupon Rich took Hovey's body, and committed him to gaol in Rutland, according to the precept of the writ, on which this bond was given, etc. It was insisted by the defendant's counsel, that this imprisonment was illegal. That property having been once taken in execution, that execution was, as to Hovey, discharged. In this case, the Chief Justice gave the following in charge to the Jury: The property was not, in fact, taken out of Hovey's custody, but was left in his hands (although receipted by third persons), and was by him eloigned. Had the |