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fendant was entitled to his writ of error, he becoming bound in double the rent (a).

The plaintiff in error in ejectment, is not bound to give the defendant in error notice of his entering into recognizance pursuant to 16 & 17 Car. 2. c. 8. s. 3. to pay costs on affirmance; nor is he required to find bail to join in the recognizance (b).

Nothing shall be assigned for error that it will make it necessary to go again into the title of the premises (c).

Of the Action of Ejectment where the Possession is vacant : -Where a Corporation is Lessor of the Plaintiff :—and Where the Action is commenced in an inferior Court.

As the old method of proceeding in this action, by sealing a lease on the premises, must still be resorted to in these cases, we have thought proper to notice them as a detached article.

If the premises, the possession of which the plaintiff seeks to recover, be empty, no declaration of course can be delivered or affidavit made of the delivery of it, and consequently the Court cannot proceed to give judgment against the casual ejector (d).—In such case therefore the old way of proceeding must be still pursued, except in the single instance of landlord and tenant, provided for by stat. 4 G. 2. of which hereafter (e).

This is done by entering on the premises, and actually sealing a lease thereon, either in person or by attorney.

If the former method be preferred, the proceeding is thus:

A. (the person claiming title) must go upon the land before the essoign day of the term, and there seal and deliver a lease to B. (any friend of his, as tenant;) and at the same time deliver him possession. This being done, get C. (any other friend) to go upon the premises, and turn out B. the tenant, by thrusting him off the premises: and whilst he continues there serve him with a declaration in ejectment, in which make B. the tenant plaintiff. A. (the person claiming title) the lessor, and C. (the actual ejector) the defendant, and declare on the demise in the lease and subscribe a notice to appear (ƒ)• The declaration is the same as usual, only the real persons are made parties, instead of fictitious names (f).

In order to get judgment in the Court of King's Bench, an affidavit must be made of sealing the lease, and of the ouster by defendant, and of all the facts. This is indorsed to move for judgment against

(a) Thomas v. Goodtitle. 4 Burr. 2501.
(6) Doe d. Webb v. Goundry. 7 Taunt.

427.

(c) Wilkes v. Jorden. Hob. 5.

(d) Run. Eject. 148.
() 2 Sell. Pract. 213.
(ƒ) Ibid. 213-4.

the casual ejector, and unless defendant appear and enter into the common rule, judgment may be signed as on a common ejectment.— In the Common Pleas, there is no need of any affidavit, nor any motion for judgment; but on the first day of term, give a rule to plead as in common actions, and if no appearance and plea, at the expiration of the rule, sign judgment (a).

If the landlord, or person claiming title, do not wish to enter himself and seal the lease, he may do it by attorney, and the proceedings are just the same; the attorney acting as the principal landlord (a).

To warrant the above proceedings, the premises must be vacant; they must be wholly deserted by the tenant, and the lessor of the plaintiff not be able to find out where the tenant is to serve him with an ejectment.

Therefore, where the lessee of a public-house took another and removed his goods and family, but left beer in the cellar; rent being in arrear, the landlord sealed a lease as on a vacant possession, delivered an ejectment, and signed judgment, it was set aside, the lessee still continuing in possession: and a case was mentioned, where leaving hay in a barn at Hendon, was held to be keeping possession. It further appeared in this case, that the attorney for the plaintiff knew whither the lessee removed, and might have served him personally, which need not be done upon the premises.-So, in the case of a renting of ground to which there is no house or barn, if it be known where the tenant lives, he must be served (b).

In cases of a vacant possession, no person claiming title will be let in by the Courts to defend, but he that can first seal a lease on the premises must obtain possession. The person therefore claiming title must resort to his new ejectment (c).

But it is said that any person claiming title to the premises, and who is usually admitted by the Court, may with leave appear and enter into the common rule, upon motion for that purpose (d). But quare now?

Ejectment by a Corporation.—It was formerly held, that when a corporation was lessor of the plaintiff, they should execute a letter of attorney authorizing some person to enter and seal a lease on the land and then declare upon a demise by deed; but these formalities are no longer necessary, and the declaration may now be in the common form.

If a corporation be aggregate of many, they may set forth the demise in the declaration without mentioning the Christian names of

(a) 2 Sell. Pract. 213-4.

(b) Savage v. Dent, 2 Str. 1064. (c) Bull. N. P. 95.

(d) Imp. Pract. K. B. 537. 2 Sell. Pract.

217.

those who compose it; but if the corporation be sole, the name of baptism must be inserted; as if the demise be by a bishop (a).

Proceedings in an inferior Court.-Where the proceedings are in an inferior Court, the plaintiff must proceed by actually sealing a lease on the premises, and the defendant tries the title in the name of the casual ejector, to save expense: for inferior Courts are not competent to make rules to confess lease, entry and ouster, and if they were, have no power to enforce obedience to them. It seems, therefore, that if the defendant in an inferior Court enter into a rule to confess lease, &c. and the cause be removed by habeas corpus, and the Judge of the inferior Court grant an attachment against the defendant for disobedience to the rule, the superior Court will grant an attachment against the Judge for exceeding his authority, and obstructing the course of the superior Court (a).

If an habeas corpus be brought to remove a cause in ejectment out of an inferior Court, the lands lying within their jurisdiction, and the lessor of the plaintiff seal a lease on the premises, the Courts above will grant a procedendo; because the title to the land is local, and therefore properly within the jurisdiction of the Court below, where, if it proceed regularly, it will not be prohibited; but if the lessor have not sealed a lease on the premises, the Courts above will not grant a procedendo (a).

So, if an ejectment be commenced in an inferior Court, and an habeas corpus be brought to remove it, and the plaintiff in ejectment declares against the casual ejector: there may be a rule to confess lease, &c. as if he had originally declared in the Court above, and the Court will not grant a procedendo (a).

If the land lie partly within the cinque ports, and partly without, the defendant cannot plead the jurisdiction of the cinque ports, above; for though the land be local, yet the demise is transitory, and triable any where and therefore though the plaintiff may lay his action for that which lies within an inferior jurisdiction in the Court below, if he take proper measures for the purpose, yet if he will proceed in a superior Court, as the demise is transitory, the defendant cannot stop his proceeding, because those Courts have competent jurisdiction (a).

SECTION III. Of the Action for Mesne Profits.

An ejectment being a feigned action, brought against a nominal defendant, and generally on a supposed ouster, is not a proper action

(a) Run. Eject. 150, 151, 152.

for mesne profits, the action for which is wholly dependent upon facts; being brought against the real tenant, for profits which he has actually received. In the one case, therefore, the damages are merely nominal; in the other, they are such as the plaintiff has sustained by a real injury; and the fiction in the former, does not, in any manner, affect the latter (a). The verdict in ejectment having, in fact, established the right of the plaintiff from the time that his title accrued, the defendant is a trespasser, and the plaintiff is entitled to recover from him damages for his unjust possession, equal to the value of the lands during that time; though this point is not settled, but the quantum depends upon circumstances (b).

This action, therefore, results from the recovery in ejectment: it is an action of trespass vi et armis, brought by the lessor of the plaintiff, in his own name, or in the name of the nominal lessee (for it may be brought in that of either) against the tenant in possession, to recover the value of profits unjustly received by the latter, in consequence of the ouster complained of in the ejectment (c).-It is usually brought by the lessor of the plaintiff in his own name, and in that case, on proving a good title in himself and an actual ouster and perception of profits by the defendant antecedent to the demise and ouster in ejectment, he will recover damages for those profits: they are seldom, however, an object of litigation, as the demise and ouster are generally laid soon after the time when the lessor's title accrued.

But the plaintiff is not bound to claim the mesne profits, only from the time of the demise; for if he prove his title to have accrued before that time, and prove the defendant to have been longer in possession, he shall recover antecedent profits (d).

In such case, however, the defendant will be at liberty to controvert the title, which he cannot do in case the plaintiff do not go for more time than is contained in the demise; because being tenant in possession, he must have been served with the declaration, and therefore the record is against him conclusive evidence of the title; but against a precedent occupier the record is no evidence, and therefore against such an one it is necessary for the plaintiff to prove his title, and also to prove an actual entry, for trespass being a possessory action, cannot be maintained without it (d).

Yet as to actual entry, it may admit of doubt, what proof is sufficient (d).—It has been said that the plaintiff is entitled to recover the mesne profits only from the time he can prove himself to have been in possession, and that therefore if a man make his will and die, the devisee will not be entitled to the profits till he has made an actual

(a) Run. Eject. 438. (6) 3 Bl. Com. 205.

() Run. Eject. 438.

(d) Bull. N. P. 87.

entry: for that none can have an action for mesne profits unless in case of actual entry and possession (a). Others have holden (6), that when once he has made an actual entry, that will have relation to the time his title accrued, so as to entitle him to recover the mesne profits from that time; and they say, that if the law were not so, the Courts would never have suffered plaintiffs in ejectments to lay their demises back in the manner they now do, and by that means entitle themselves to recover profits, to which they would not otherwise be entitled: beside, the Court will intend every thing possible against the defendant (c).

Supposing, however, that a subsequent entry has relation to the time that the plaintiff's title accrued, yet certainly the defendant may plead the statute of limitations, and by that means protect himself from all but the last six years (d).

If one tenant in common recover in ejectment against the other, he may maintain trespass for the mesne profits (c).

Any one in possession of the premises after a recovery of them by action of ejectment is a trespasser and as such liable to damages, and he cannot cover himself under the licence of the defendant in ejectment, for no man can license another to do an illegal act. In a case where Sellon, Serjt. moved for a new trial, it appeared that the plaintiff by an action of ejectment had evicted one Mitchel (who had been a tenant of his under an agreement for a lease), and had since brought an action against the present defendant, in which he had declared first in trespass quare clausum fregit, and in another count for money had and received, being in fact for the mesne profits. Sellon for the present defendant contended, that his client being in possession merely as the agent of Mitchel, who was in prison, was not liable to any action of trespass nor for the mesne profits, Mitchel himself being the only party to be looked to. But Lord Kenyon observed, that the plaintiff having recovered in ejectment against his tenant, any other party in possession was liable to be deemed a trespasser, and that, in an action of trespass, damages ought to be given, though not amounting quite to the mesne profits. Rule refused (e).

If the action be brought in the name of the nominal plaintiff, the Court, on application, will stay the suit till security be given for answering the costs; but will not permit such a plaintiff to release the action; his release therefore has been set aside as a contempt of Court: and there is no distinction between a judgment in ejectment upon a verdict, or by default; for in the one case, the right of the

(a) Metcalf v. Harvey. 1 Ves. 249.
(b) Trevillian v. Andrew. 5 Mod. 384.
(c) Goodtitle v. Tombs, 3 Wils. 121.

(d) Bull. N. P. 88.

(e) Girdlestone v. Porter, K. B. M. T. 39 G. 3. MSS.

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