Byrne v. Boyle

The opinion of the court was delivered, by

Lowrie, C. J.

— Writs of estrepement, like injunctions, are means of preserving property that is in litigation, from spoil or injury until the rights in relation to it can be settled, and our statutes allowing them are simply declaratory of the common law authority of the courts. It was because the courts did not exercise this authority as freely as they ought to have done that some of the statutes relative to estrepement were passed: see Fitzh. N. B. 139; 10 Vin. Ab. 497; Rob. Dig. 418.

By common law and by our statutes the writ may be dissolved ■by the court on a hearing with or without terms, as the case may seem to require, or it may be dissolved on the defendant’s giving security for all damage that he may do pending the act. A bond to the plaintiff is not an improper form of giving such security. If the plaintiff recover in his action of ejectment, he establishes his right to the possession of the property in as good a condition as it was when the action was brought, and therefore to all damages done to it in the meantime. The very purpose of the estrepement bond is to secure him this, and it does not depend upon any subsequent action relative to the title to the land. The court below was therefore right in all its rulings in the case.

Judgment affirmed.