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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 (3).

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. 1 («) Run. Eject. 438.

(*) 3 BL Com. 805. I (J) BulL N. P. 8 7.

entry: for that none can have an action for mesne profits unless in case of actual entry and possession (a). Others have holden (b), 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/regit, 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

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plaintiff is tried and determined against the defendant, and in the other it is confessed (a).

This action may be brought pending a writ of error in ejectment, and the plaintiff may proceed to ascertain his damages, and sign his judgment; but the Court will stay execution till the writ of error be determined (b).

If the defendant bring a writ of error on the verdict against him in ejectment, and enter into a recognizance pursuant to the statute 16 Sf 17 C. 2. c. 8. to pay costs, the plaintiff on judgment in his favour on the writ of error, need not bring a scire facias or action of debt on the recognizance, but may sue out an elegit or writ of inquiry, to recover the mesne profits since the first judgment in ejectment (b).

The defendant in this action may be held to bail.

The declaration in this action for mesne profits must expressly state the several parcels of land, &c. from which the profits arose, or the defendant may plead the common bar (c-).

The defects in a declaration in an action for mesne profits, in not stating any time when the defendant broke and entered the messuage, &c. and ejected the plaintiff from the occupation of it; and in stating only that the defendant kept and continued the plaintiff so ejected for a long space of time, without stating how long, are cured by the operation of the stat. 4 Ann. c. 16. after judgment by default, and a writ of inquiry of damages executed, so that no objection can be taken in arrest of final judgment for such defect m form (d).

In trespass for the mesne profits against the tenant in possession after a recovery in ejectment by default against the casual ejector, the tenant cannot pay the money into Court, for the action is for a tortious occupation from the time the tenant had notice of the title of the lessor of the plaintiff (e).

In trespass against the tenant in possession for mesne profits, either by the lessor or the nominal plaintiff, after recovery in ejectment the plaintiff need not prove a title; but it is sufficient to produce the judgment in ejectment and the writ of possession executed, and to prove the value of the profits, and thereupon he shall recover from the time of the demise laid in the declaration (f).

But if the judgment have been against the casual ejector, and no writ of possession executed, the defendant in possession may controvert the title, if he have not been made a defendant in the ejectment and had a verdict against him, and therefore the recovery in ejectment is not against him conclusive evidence (g).

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Where premises are in the possession of a tenant, and there is a judgment in ejectment against the casual ejector in an action for mesne profits and costs of ejectment against the landlord, the judgment in ejectment is no evidence against him without proof that he had notice of the ejectment, so that he might have come in to defend it; but a subsequent promise by him to pay the rent and costs amounts to an admission that he is liable to the action (a).

In an action for mesne profits for one year, the declaration contained other counts for destroying fences, to which a justification was pleaded, and upon a new assignment, the general issue. An examined copy of the judgment in ejectment was proved. The trespass in respect to the fences was also proved, but the Judge (Runnington, Serjt.) being of opinion, that as it was committed while the defendant was in possession as tenant, the action was misconceived for that part, the jury by his direction gave no damages in respect thereof.—A rule for a new trial was obtained on the ground of the trespass having been committed after the defendant had ceased to be tenant to the plaintiff and after the recovery in ejectment; but that not appearing to be the fact, from the report as it was read from the Judge's note, the rule for a new trial was discharged (b).

A recovery in ejectment against the wife cannot be given in evidence against the husband and wife for mesne profits: for in such case there is no evidence of the trespass but the judgment in ejectment; and the wife's confession of a trespass committed by her cannot be given in evidence to affect the husband in an action in which he is liable for the damages and costs (c).

Bankruptcy is no plea in bar to an action for mesne profits; for the damages occasioned by the tort are uncertain (d).

So also a plea of a discharge under the Insolvent Debtor's Act is no bar to an action for mesne profits, even though accruing before the discharge (#).

Where, after a recovery in ejectment and before an action of trespass for mesne profits, the defendant became a bankrupt, and the jury did not include the costs of the ejectment in their verdict in executing a writ of inquiry in the action for mesne profits, the Court refused to set aside the inquisition, because the plaintiff might have proved the costs as a debt under the defendant's commission of bankrupt (/). Touching the quantum of damages given by the jury in this action, they are not to be bound by the amount of the rent, but may give extra damages: indeed four times the value of the mesne profits have

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been known to be given in this sort of action of trespass (a); and after judgment, by default, the costs in ejectment being recoverable are usually declared for as damages in this action for mesne profits (O.

The plaintiff can recover no farther costs in this action than were taxed in the ejectment, if it were regularly defended: but it is otherwise if judgment were against the casual ejector (f).

The nominal plaintiff in ejectment, in whose name the mesne profits have been recovered, may sue for an escape of the defendant in execution for such mesne profits (d).

Section IV. Of a second Action of Ejectment.

A judgment in ejectment, it may be remembered, is a mere recovery of the possession without prejudice to the right. It, therefore, is not final between the parties so as to protect either the defendant or plaintiff (if he succeed) from any further suit; for the same plaintiff, if he be nonsuited, or have a verdict against him, may bring another ejectment against the same defendant, or if he succeed in the action and get possession, he is still liable to an ejectment from the defendant in the former action (e).

This in one respect may be deemed an advantage, because the parties are not concluded by one trial, in case the real merits (from accident, partiality, want of evidence, which might be afterwards supplied, or the like) happened not to have been fairly tried between them: but in another respect, much mischief may result from it, as the spirit of litigation is thereby kept alive (e).

The reason why an action of ejectment is not or cannot be final seems to be this: That it is impossible, from the structure of the record in this action, to plead a former in bar of another ejectment brought; because, i. The plaintiff and defendant are nominal and exist in most cases on record only, and consequently may be changed in a new action; but the identity both of plaintiff and defendant must be averred in pleading a former action in bar (f). 2. The term demised may be laid many different ways. It has sometimes, indeed, been attempted in Chancery, after three or four ejectments, by a bill of peace to establish the prevailing party's title, yet it has always been denied, for every termor may have an ejectment, and every ejectment supposes a new demise, and the costs in ejectment are a recompence for the trouble and expense to which the possessor is put.—But where the suit begins in Chancery for relief touching pretended incumbrances

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