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 & 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 in 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 (ƒ). 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). (a) Run. Eject. 439. Bull. N. P. 89. (6) 2 Sell. Pract. 226. (4) 2 Cromp. Pract. 223. (d) Higgins v. Highfield. 13 East R. 407. (e) Holdfast v. Morris. 2 Wils. 115. (g) Jefferies v. Dyson, 2 Stran. 960. 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 (e). 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 (ƒ). Touching the quantum of damages given by the jury in this action, they are not to be bound by the amount of the rènt, but may give extra damages: indeed four times the value of the mesne profits have (a) Hunter v. Britts 3 Camp. 455. (d) Goodtitle v. North. Doug. 584. Gulliver v. Drinkwater. 2 T. R. 261. 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 (b). 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 (c). 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, 1. 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 (ƒ). 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 (a) Goodtitle v. Tombs. 3 Wils. 121. (6) Bull. N. P. 88. () Doe v. Davis. I Esp. R. 358. (d) Doe v. Jones. 2 M. & S. 473. (e) 2 Sell. Pract. 230. (f) 4 Eunomus. 189. on the title of lands, and that Court has ordered the defendant to pursue an ejectment at law, there after one or two ejectments tried, and the right settled to the satisfaction of the Court, the Court has ordered a perpetual injunction against the defendant, because there the suit is first attached in that Court, and never began at law (@); and such precedent incumbrances appearing to be fraudulent, and inequitable against the possession, it is within the compass of the Court to relieve against it (b). As the costs of the ejectment are deemed the recompence as above stated (though in truth but a poor one), the Court will not suffer either the plaintiff to bring a new ejectment, or the defendant to bring an ejectment against the successful plaintiff, until the costs of the former action are paid.-The Courts now consider a former ejectment in another Court, as one in the same Court, and will stay proceedings in a second till the costs of the former are paid (c). So, though in such former ejectment the lessor of the plaintiff never entered into the consent-rule: and where a rule for a new trial was obtained on the ground of the plaintiff having been nonsuited by reason of his inability to prove that the defendant had entered into the common rule to defend as landlord, the Court said, that as there had been a slip in the plaintiff not being able to prove the rule under which the defendant was let in to defend, though no blame was imputable to him as the objection could not be foreseen, yet the new trial must be on the common terms of payment of costs (d).-So, when an ejectment was brought by a fraudulent assignee of an insolvent debtor, the former lessor being plaintiff.-So, proceedings were stayed in error and a second ejectment, the plaintiff not being able to shew that the writ of error was brought with any other view than to delay payment of costs (e). The remedy to enforce the payment of costs, after verdict is by attachment. But where the lessor of the plaintiff has been taken into custody upon an attachment for costs, which is in the nature of a capias ad satisfaciendum, there is no reason to grant the rule to stay proceedings in another action brought by the same lessor on the same demise (f). So, where before trial a mistake is discovered, so as to render it necessary to serve a new ejectment, the Court will not stay proceedings till the costs of the first are paid; unless the party has been vexatious, or great expense has been incurred. But if the lessor of the plaintiff be not known, the Court will order (a) 2 Sell. Pract. 230. (6) Leighton v. Leighton. I Stra. 404. (c) 2 Sell. Pract. 231. (d) Smith d. Ginger v. Barnardiston. 2 Bl. R. 904. Doe d. Shute v. Dyke M. T. 40 G. 3. K. B. T.'s MSS. () Doe d. Chambers v. Law. 2 BL. R. 1180. Grumble v. Bodilly. 1 Stra. 554(ƒ) 2 Sell. Pract. 232. notice to be given where he may be found.-So, if he abandon his ejectment in one Court and bring a new action in the other (a). Proceedings in a second ejectment were stayed till the special verdict in the former was determined (b). When the plaintiff succeeds in an ejectment, the defendant cannot bring a new ejectment against him, until he has delivered up possession, or the tenants in possession have attorned: and, it should seem, till he has also paid the costs of the former action (c). The Court will not give the plaintiff leave to discontinue after a special verdict has been had, in order to adduce fresh proof in contradiction to the verdict (d). SECTION IV. Of the Action of Ejectment upon the Statute 4 G. 2. c. 28. s. 2. By the common law an actual entry, by the person claiming title to lands and tenements, was necessary to be made in order to support an action of ejectment; but in the case of a lease, the landlord could not enter and take the actual possession until the lease was expired: it therefore became usual to insert a proviso that in case the rent of the demised premises was behind and unpaid at a certain time, the lessor should have a right to re-enter. In parol demises, however, from year to year, the landlord could not have the benefit of such a proviso; and when the right of re-entry subsisted, great inconvenience frequently happened to lessors or landlords in cases of re-entry for nonpayment of rent, by reason of the many niceties that attended such re-entries at common law; and even when a legal re-entry was made, the landlord or lessor was put to the expense and delay of recovering in ejectment before he could obtain the actual possession of the demised premises (e).—It is therefore enacted, By the 4th G. 2. c. 28. s. 2. "That in all cases between landlord and tenant, as often as it shall happen that one half year's rent shall be in arrear, and the landlord or lessor to whom the same is due, hath right by law to re-enter for the non-payment thereof; such landlord or lessor shall and may, without any formal demand or re-entry, serve a declaration in ejectment for the recovery of the demised premises; or in case the same cannot be legally served, or no tenant be in actual possession of the premises, may then affix the same upon the door of any demised messuage; or in case such ejectment shall not be (a) Short v. King. 2 Stra. 681. Thrustout v. Troublesome. Ibid. 1099. Brittain v. Greenville. Ibid. 1121. Doe d. Selby v. Alston. 1 T. R. 491. (b) Smith d. Dormer v. Parkhurst. 2 Stra 1105. (c) Fenwick v. Grosvenor. I Salk. 258-9. FF |