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name, or in the name of the fictitious lessee (46) against the person in actual possession and trespassing; and in which the plaintiff may declare, not only for the loss of the mesne profits, but also for the costs of the ejectment, where the case requires it, as after judgment in ejectment by default against the casual ejector. This action is local in its nature, and must be brought in the county where the lands lie. It was formerly doubted, whether an action for mesne profits could be brought, in the name of the fictitious lessee or nominal plaintiff in ejectment, after a judgment by default against the casual ejector: but in the case of Aslin v. Parkin, 2 Burr. 665. Barnes, 472. 4to. edit. S. C., it was determined that it might be so brought, as well as after a judgment upon a verdict, against the tenant in possession. The action for mesne profits may be brought by one tenant in common, who has recovered in an action of ejectment by default, against his companion. By stat. 1 Geo. 4. c. 87. s. 2. it is enacted, that wherever hereafter it shall appear on the trial of any ejectment, at the suit of a landlord against a tenant, that such tenant or his attorney hath been served with due notice of trial, the plaintiff shall not be nonsuited for the default of the defendant's appearance or of confession of lease, entry, and ouster; but the production of the consent rule and undertaking of the defendant shall, in such cases, be sufficient evidence of lease, entry, and ouster; and the judge before whom such cause shall come on to be tried shall, whether the defendant shall appear upon such trial or not, permit the plaintiff, on the trial, after proof of his right to recover possession of the whole or of any part of the premises mentioned in the declaration, to go into evidence of the mesne profits thereof, which shall or might have accrued from the day of the expiration or determination of the tenant's interest in the same, down to the time of the verdict given in the cause, or to some preceding day to be specially mentioned therein: and the jury, on the trial, finding for the plaintiff, shall, in such case, give their verdict upon the whole matter, both as to the recovery of the whole or any part of the premises, and also as to the amount of the damages to be paid for such mesne profits : provided that nothing hereinbefore contained shall be construed to bar any

h Goodtitle v. Tombs, 3 Wils. 118.

(46) Where the action is brought in the name of the fictitious lessee, the court will, upon application, stay the proceedings, until security is given for answering the coste. Bull. N. P. 89.

such landlord from bringing an action of trespass for the mesne profits, which shall accrue from the verdict, or the day so specified therein, down to the day of delivery of possession of the premises recovered in the ejectment.”

Evidence. The evidence necessary to support this action (after judgment, upon a verdict of ejectment against the tenant in possession, who has appeared and confessed lease, entry, and ouster) is as follows: an examined copy of the judgment in ejectment, and of the rule of court to confess lease, entry, and ouster (47), proof of the length of time during which the defendant has occupied, and of the value of the mesne profits, and of the costs of executing the writ of possession.

Where the judgment in ejectment has been by default against the casual ejector, and so no rule for the confession of lease, entry, and ouster, the plaintiff, in the action for mesne profits, ought to be prepared with an examined copy, not only of the judgment, but of the writ of possession also; and the return of execution thereon, and proof of the costs in the ejectment, and in executing the writ of possession: proof of the value of the mesne profits will be required in this case as in the former. The judgment in ejectment will be conclusive evidence against the tenant in possession of the plaintiff's title, from the day of demise laid in the declaration in ejectment; consequently in the action for mesne profits, it is not necessary for the plaintiff to be prepared with proof of title,

(47)

Where the judgment is had against the tenant in posses. sion, and the action of trespass brought against him, it seems sufficient to produce the judgment without proving the writ of possession executed, because by entering into the rule to confess, the defendant is estopped both as to the lessor and the lessee, so that either may maintain trespass without proving an actual entry ; but where the judgment is had against the casual ejector, and so no rule entered into, the lessor shall not maintain trespass without an actual entry, and therefore ought to prove the writ of possession executed." Thorp v. Fry, coram Blencowe, J. 11 W. 3. MSS. Bull. N. P. 87. Northeron v. Bowler, at Exon. Ass. Button v. Bor, coram Abney, J. Oxford Summ. Ass. 1742. S. P. Notwithstanding the distinction taken in the preceding case, it may be prudent, in general, to be prepared with an examined copy of the writ of possession and return of execution. But N. If the plaintiff has been let into possession by the defendant, that will supersede the necessity of proving that the writ of possession has been executed. Per Ellenborough, C. J. in Calvert v. Horsfall, 4 Esp. N. P. C. 167.

except where he seeks to recover property antecedent to the day of the demise, or brings his action against a precedent occupieri (48). But in order to render the judgment by default conclusive evidence of the title, it must be pleaded as an estoppelk; for a judgment is in no case conclusive unless pleaded by way of estoppeld. If the plaintiff declares against the defendant for having taken the mesne profits for a longer period of time than six years, before action brought, the defendant may plead the statute of limitations; viz. not guilty within six years before the commencement of the suit, and thereby protect himself from all but six years. This action being for the recovery of damages, which are uncertain, the bankruptcy of the defendant cannot be pleaded in bar. A judgment, recovered in ejectment against the wife”, cannot be given in evidence in an action against the husband and wife, for the mesne profits; because the husband was no party to that suit. So a recovery in ejectment against a former tenant in possession is noto producible in evidence, against a person who is afterwards found in possession, without proving that he came in under the defendant in ejectment, so as to make him a privy to the judgment in ejectment; the rule of law being, that judgments bind only parties and privies, and as to strangers are considered as res inter alios actæ and consequently not producible against them. If there be two counts, and the defendant pleads to the first, Not guilty, and on the last suffers judgment by default, the defendant will be entitled to a verdict on the first count, if plaintiff cannot prove that defendant had committed another and a different act of trespass from that confessed by the defendant. Trespass for mesne profits. The declaration contained two counts, the first of which stated the entry and expulsion on the 25th March, 1794; and the last stated the entry and expulsion on the 3rd June, 1797. To the first count the defendant pleaded, not guilty, and on the last he suffered judgment to go by default. The venire was awarded as well to try the issue joined on the first count as to assess damages on the last. At the trial the plaintiff proved one act of trespass only, which was

i Decosta v. Atkins, Bull. N. P. 87. m Goodtitle v. North, Doug. 583. k Doe v. Huddart, 2 Cr. M. and R. n Denn v. White and Wife, 7 T. R. 316.

112. i Per Parke, B. Doe v. Seaton, 2 Cr. o Doe v. Harvey, 8 Bingh. 242.

M. and R. 732. and ante, p. 753.

(48) In these cases the action should be brought in the name of the lessor of the plaintiff.

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covered by the last count: it was holdenP, that a verdict should be entered up for the defendant on the first, and damages assessed on the last. The plaintiff brought ejectment in Č. B. judgment was given for defendant; that judgment was afterwards reversed on error in B. R. The plaintiff afterwards brought trespass for mesne profits in B. R., and claimed to recover, by way of damages, the costs in error. It was holden 9, that he was entitled to recover those costs as part of the damage sustained, and that the jury might consider the costs between attorney and client as the measure of the damage. If the plaintiff recover less than forty shillings damages", and the judge does not certify that the title came in question, the plaintiff will not be entitled to any more costs than damages.

r Doe v. Davis, 6 T.R. 593.

p Compere v. Hicks, 7 T. R. 727.
q Nowell v. Roake, 7 B. and C. 404.

CHAP. XIX.

EXECUTORS AND ADMINISTRATORS.

I. Of Bona Notabilia.
II. Of the Nature of the Interest of an Executor or Ad-

ministrator in the Estate of the Deceased. In what
Cases it is transmissible; and where an Administrution

de bonis non is necessary III. Of limited or temporary Administrations. IV. Of an Executor de son Tort. V. Of the Disposition of the Estate of the deceased; and

of the Order in which such Disposition ought to be

made. VI. Of Admission of Assets. VII. Of Actions by Executors and Administrators. VIII. Of Actions against Executors and Administrators. IX. Of the Pleadings; and herein of the Right of Retainer

-Evidence JudgmentCosts.

I. Of Bona Notabilia.

By the 92nd canon, (1) “If a testator or intestate dies in one diocese, and has, at the time of his death, goods or good debts to the value of five pounds, in any other diocese

(1) This and the following will be found among the canons made by the clergy in a convocation, holden in the first year of the reign of King James the First, A. D. 1603. They received the royal assent, but were not confirmed by parliament. And on this ground it was holden in Middleton v. Crofts, Str. 1056, that the canons of 1603 did not proprio vigore bind the laity. "I say proprio vigore, by their own force and authority; for there are many provisions contained in

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