Morris, 8 M. & W. 488. The licence in such a case must be express; and semb., it is not irrevocable, unless it be by a deed sufficient to pass an interest in land. S. C. ibid. An acquiescence of the plaintiff in the trespass, upon an erroneous representation, to which the defendant was a party, of the legal obligation of the plaintiff to submit to it, will not support a plea of licence. Semb. Roper v. Harper, 4 New Ca. 20. It is not sufficient to shew a licence by a servant, unless it be in law the licence of the master; Holdrinshaw v. Rag, Cro. Eliz. 876.; or by a wife; Tayler v. Fisher, Cro. Eliz. 245.; or by a daughter; Cock v. Wortham, Selw, N. P. 1040.; unless the circumstances of the case shew that the wife or the daughter was the agent of the party for granting such licence. A licence includes, as incident to it, a power to do every thing without which the act licensed cannot be done. Thus if A. license B. to enter his house to sell goods, B. may take assistance, if necessary, for the purpose of selling the goods. Dennett v. Grover, Willes, 195. But an authority from a tenant to his landlord, in the absence of the former, to let the premises, will not justify the landlord in entering the premises (the key being lost) through a window by means of a ladder in order to shew the house. Ancaster v. Milling, 2 D. & R. 714.

If the plaintiff did in fact license the defendant, and the defendant has exceeded the licence, such excess cannot be given in evidence under a denial of the licence, but should be new assigned; Ditcham v. Bond, 3 Camp.524.; 1 Saund. 300. d. (n.); but see Symons v. Hearson, 12 Price, 369. It has been held, however, that a revocation of the licence may be proved upon an issue joined upon this plea; for it shews that there was no licence at the time of the trespass. Per Best C. J. and Holroyd J., in Bridge v. Seddall, Derby Sp. As. 1827, 2 Phill. Ev. 194., 7th ed.; but see Serjeant Williams's note, 1 Saund. 300. d. An abuse of an authority in law, whereby the defendant became a trespasser ab initio, must be replied. 1 Saund. 300, d. (n.)

Where the plaintiff means to deny the justification set up in the plea, he must take issue upon it, and not new assign. Thus, where the defendant pleads an entry to abate a nuisance, and the plaintiff new assigns unnecessary violence, he will not be allowed to negative the nuisance. Pickering v. Rudd, 1 Stark. 56.

Where the declaration states the trespasses to have been committed on divers days and times, and the defendant pleads that he committed the several trespasses by leave and licence, to which the plaintiff replies de injuriâ generally, the defendant must shew a licence co-extensive with the trespasses proved, i. e., a licence for each trespass proved by the plaintiff. Barnes v. Hunt, 11 East, 451. It has been said that this effect of the replication de injuriâ is peculiar to the plea of licence and results from the form in which it is usually pleaded; the plea may be framed so as to put the plaintiff to a new assignment. Per Parke B., Solly v. Neish, 4 Dowl. P. C. 252.; Littledale, J., in Bowen v. Jenkin, 6 A. & E. 919.; and Parke B., in Bolton v. Sherman, 2 M. & W. 400. Where A. applied to B. for leave to put a ladder on B.'s land" for the purpose of more conveniently finishing a window" opened in A's house, B., by permitting the ladder to be so placed, does not thereby impliedly license A. to open the window, especially if the situation and nature of the window is not pointed out to B. Bridges v. Blanchard,

Evidence on a new assignment.] A new assignment waives and abandons the trespass which the defendant has justified. Greene v. Jones, 1 Saund. 299. c. (n). Therefore, where the defendant pleads lib. ten., and the plaintiff new assigns, the defendant ought not to plead that the place mentioned in the new assignment is the same as that mentioned in the plea; but if in truth they are the same, the defendant should plead Not guilty, and the plaintiff will not be allowed to give evidence of any trespasses committed in the place mentioned in the plea. Pratt v. Groome, 15 East, 235.; B.N.P. 92. So where the defendant pleaded that the place where, &c. was part of a common which had been allotted to him, to which the plaintiff new assigned that the trespass complained of was in another place; upon its being stated in the opening of the plaintiff's counsel to the jury that the trespass was in the same place, but that the defendant had no title to it, it was held that the plaintiff could not recover. Anon. cited 16 East, 86. So if the defendant justifies under legal process, which is in fact irregular, and the plaintiff, instead of traversing the plea, new assigns that the trespass complained of was on another and different occasion, such new assignment admits the justification stated in the plea, and if the plaintiff can only prove one trespass, that trespass will be covered by the plea, and the defendant will be entitled to a verdict. Oakley v. Davis, 16 East, 82.; and see Atkinson v. Matteson, 2 T. R. 172., antè, p. 472-3. When the trespass, proved clearly, differs in its circumstances from the one justified, the plaintiff is not bound to prove two separate trespasses; but if alike, the jury should presume them to be the same. Darby v. Smith, 2 M. & Rob. 184.

On the other hand, if there were in fact two trespasses, but only one count, and the defendant has pleaded a justification which he can prove as to one, the plaintiff must new assign if he means to rely on the other trespass. See antè, p. 472.

In some cases, as already stated, antè, p. 493-4., the plaintiff may both reply and new assign, and will, if he succeeds, be entitled to recover for the trespasses attempted to be justified in the plea, as well as for those covered by the new assignment.

In trespass, q. c. f. and making a railroad on the close, the defendant pleaded a grant of sufficient way leave, &c. to dig for coal, and that the railroad was convenient, proper, and necessary; to which the plaintiff new assigned trespasses for different purposes, and to a greater extent than necessary: Held, that the necessity of some sort of railroad was admitted on this record by the plaintiff, but that he might shew it to be constructed in a direction and manner not warranted by the grant. Dand v. Kingscote, 6 M. & W. 174. It is a question for a jury in such case whether a railway is necessary or expedient for the purpose of effectually working reserved mines. Durham and Sunderland Railway Co. v. Walker, 2 Q. B. 940.

Where the defendant justifies and the plaintiff relies upon an act which renders the defendant a trespasser ab initio, such act should be replied; for should the plaintiff new assign that the trespass is a different trespass, he cannot recover; since he can only prove one continued act of trespass, the justification of which is admitted by the new assignment. Aitkenhead v. Blades, 5 Taunt. 198. Nor can the plaintiff in such case recover under a replication of de injuriâ generally. Lambert v. Hodgson, 1 Bing. 317

Where the defendant lets judgment go by default on the new assignment, but leaves the plea of Not guilty to the declaration on the record without withdrawing it as to the matters newly assigned, the plaintiff must prove the trespasses newly assigned; Broadbent v. Shaw, 2 B. & Ad. 940.; for they were in fact included in the declaration, and are therefore still denied by the plea.

Competency of Witnesses.

In trespass by A. against his next neighbour B. touching the right to a lane dividing their properties, their common landlord is an admissible witness to shew that he let it to them as tenants in common; Noye v. Reed, 1 M. & R. 63. Where the question was whether the plaintiff, or one T. W. under whom defendant claimed, was entitled to the close, T. W. was held competent for the defendant; for the result cannot change the possession as in ejectment. Rees v. Walters, 3 M. & W. 527. The cases of incompetency will now be much narrowed by the operation of 6 & 7 Vict. c. 85. See Appendix.

TRESPASS FOR MESNE PROFITS.

In an action of trespass for mesne profits, (which may be brought in the name of the lessor of the plaintiff in ejectment, or in the name of the nominal plaintiff,) the plaintiff may by the pleadings be called upon to prove, 1. his title; 2. his re-entry; 3. the defendant's liability by reason of possession; and, 4. the amount of damages.

Evidence of title.] The judgment in ejectment is proof of title for the plaintiff in this action, whether it be brought by the lessor of the plaintiff or by the nominal plaintiff, against all who are parties or privies to such judgment, and whether the judgment in ejectment be upon verdict or by default; Aslin v. Parkin, 2 Burr. 665.; Doe v. Whitcomb, 8 Bing. 46.; but it is only evidence of title from the time of the demise laid in the declaration in ejectment, and therefore if the plaintiff seeks to recover mesne profits anterior to that time, it will be necessary for him to give further evidence of his title; B. N. P. 87.; Aslin v. Parkin, 2 Burr. 668.; and it is, in no case, conclusive evidence on an issue joined on the title to the close. Doe v. Huddart, 2 C. M. & R. 316. To be conclusive it must be replied. Doe v. Wright, 10 A. & E. 763. A judgment in ejectment on the several demises of two or more persons will be evidence of title for them in a joint action of trespass brought by them; for they may be tenants in common. Chamier v. Clingo, 5 M. & S. 64. The judgment will not be evidence against a stranger; and therefore a judgment in ejectment against a wife cannot be given in evidence against her husband; Denn v. White, 7 T. R. 112.; but it is evidence against a person who comes into possession, after the judgment, under the defendant in ejectment; Doe v. Whitcomb, 8 Bing.

46.; though not against a person merely shown to be in possession, without further proof of privity to the judgment; Doe v. Harvey, ib. 239.; and it cannot be shewn by parol that the defendant came in under the defendant in the former action, where it appears he came in under a written agreement. S. C. ib. Where, after judgment by default against the casual ejector, an action, for the mesne profits was brought against the landlord who had been in the receipt of the rents and profits from the day of the demise, Lord Ellenborough ruled that the judgment in ejectment was not evidence against him without notice of the ejectment; but that a subsequent promise by him to pay the rent and costs amounted to an admission that he was a trespasser, and that the plaintiff was entitled to the possession. Hunter v. Britts, 3 Camp. 455.

Evidence of plaintiff's re-entry.] As trespass only lies at the suit of one in possession, the plaintiff must appear to have been in possession when the defendant first entered and expelled him. Where the action is brought against a person who was party to the ejectment and entered into the consent rule, proof of the judgment in ejectment is sufficient without proving the writ of possession executed; because, by entering into the rule, the defendant is estopped both as to the lessor and lessee, so that either may maintain trespass without proving an actual entry. B. N. P. 87. But where the judgment is against the casual ejector, and no rule therefore has been entered into, it is said that the lessor cannot maintain trespass without an actual entry, and therefore ought to prove the writ of possession executed, id. ib. This is done by producing an examined copy of the writ and of the sheriff's return. The plaintiff may also prove a re-entry by shewing that he was let into possession with the consent of the defendant. Calvart v. Horsfall, 4 Esp. 167. It is, however, doubted whether in either case an actual re-entry need be proved, inasmuch as the judgment in ejectment is equally evidence of possession and of title. Aslin v. Parkin, 2 Burr. 668.; Runnington Eject. 442. And it is the better opinion, though not absolutely decided, that the entry, whether real or confessed, has relation to the first accruer of the title, so as to entitle the plaintiff to mesne profits from that time. 2 Stark. Evid. 312.; B. N. P. 87.

The defendant's possession.] The possession, and length of time since the defendant has been in such possession, seem proper evidence on the issue on Not guilty; and the dates alleged in the declaration of trespass, as that of the ejectment and of the recovering possession, are not material though not under videlicet. The duration of possession must therefore be proved, even where defendant lets judgment go by default. Ive v. Scott, 9 Dowl. P. C. 993. The action has been said to be only against the person who is actually in possession and trespassing; therefore it does not lie against a lessee whose undertenant holds over after the expiration of the lessee's interest. Burne v. Richardson, 4 Taunt. 720. But this doctrine cannot be supported; therefore, where the defendant in ejectment, K., had previously demised to A., who underlet to B., and B. wrongfully held over, paying rent to A., who accepted it under his title from K., it was held that all three might be joined in trespass for the mesne profits; but semb., it would have been different if the under-tenant had held over against the will of his imme

diate lessor. Doe v. Harlow, 12 A. & E. 40. And in such a case as the above, the record in ejectment against K. is evidence against A. and B. S. C. ib. The defendant cannot defeat the action by shewing that he entered only as agent for, and under licence of, the defendant in ejectment. Girdlestone v. Porter, Woodf. L. & T. 511.

The judgment in ejectment is no evidence of the time during which the defendant has been in possession; the consent rule admits possession by the defendant at the time of the service of the declaration; but if the plaintiff seeks damages for an earlier period, he must give further evidence of the possession. Dodwell v. Gibbs, 2 C. & P. 615.; Aslin v. Parkin, 2 Burr. 668.

The damages.] The plaintiff must be prepared to prove the value of the mesne profits, and he may recover not only the actual mesne profits, but also damages for his trouble, &c. Goodtitle v. Tombs, 3 Wils. 121. So he may recover the amount of the taxed costs of the ejectment (if laid in the declaration), but not any extra costs; Doe v. Davis, ì Esp. 358.; Brooke v. Bridges, 7 B. Mo. 471.; unless there was judgment by default in the ejectment. Doe v. Huddart, 2 C. M. & R. 316. See Doe v. Filliter, 11 M. & W. 80. He may likewise recover, by way of damages, costs incurred by him in a court of error in reversing a judgment in ejectment obtained by the defendant. Nowell v. Roake, 7 B. & C. 404. The measure of damages is not the whole mesne profits, but only such profits as accrued during the possession of the defendant. Girdlestone v. Porter, Woodf. L. & T. 511.

Defence.

If the plaintiff seeks to recover the mesne profits for more than six years, the defendant may plead the statute of limitations. B. N. P. 88. Under the general issue the defendant cannot give in evidence that the plaintiff accepted the rent of the premises for the time in dispute, and agreed to waive the costs of the ejectment; for this admits a trespass. Doe v. Lee, 4 Taunt. 459. Where he is not concluded by the record in ejectment, the defendant may controvert the plaintiff's title. Doe v. Huddart, suprà.

Recovery of the mesne profits in ejectment.] By stat. 1 Geo. 4. c. 87. s. 2., whenever it shall appear on the trial of an ejectment at the suit of a landlord against a tenant, that the tenant or his attorney has been served with due notice of trial, the plaintiff shall not be non-suited for 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 all such cases be sufficient evidence of lease, entry, and ouster, and the judge before whom the cause is tried shall permit the plaintiff (whether the defendant shall appear upon such trial or not), 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 from the day of the expiration or determination of the tenant's interest 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