*949

SECTION XVII.

WRIT OF ERROR.

A WRIT of error cannot be brought in the name of the casual ejector, and if the defendant refuse at the trial to confess, &c., he will be precluded from bringing error, because the plaintiff will then be nonsuited as to him, and the judgment will be entered against the casual ejector."

By 16 & 17 Car. II, c. 8, s. 3, no execution shall be stayed by writ of error, upon any judgment after verdict in ejectment, unless the plaintiff in error shall become bound in a reasonable sumb to pay the plaintiff in ejectment all such costs, damages, and sums of money, as shall be awarded to such plaintiff, upon judgment being affirmed, or on a nonsuit, or discontinuance had. Though the words of the statute seem to require that the plaintiff in error should be personally bound, yet by a reasonable construction it has been held to be sufficient if he procure proper sureties to enter into recognisance.

Although the sureties may be examined as to their sufficiency, the plaintiff in error cannot; and, therefore, where the lessor of the plaintiff swore, that the defendant was insolvent, and also that he (the lessor) had a mortgage upon the land for more *than it was worth, the court still held, that the defendant's recognisance was sufficient to entitle him to a writ of error.d

Under 1 Geo. IV, c. 87, s. 3, the defendant must give two additional sureties on bringing error, although he has before given two sureties on commencing the action.

The plaintiff in error is not bound to give the defendant notice of his entering into the recognisance pursuant to 16 & 17 Car. II. The writ of error does not operate as a stay of proceedings until bail is put in, which cannot be done until the plaintiff has taxed his costs; for until then the amount of the penalty of the recognisance cannot be fixed."

Where the defendant brought a writ of error in parliament, the court compelled him to enter into a rule not to commit waste or destruction during the pending of the writ of error."

As the plaintiff in ejectment is always a fictitious person, and

Adams, 348. By 11 G. IV & 1 W. IV, c. 70, s. 8, all writs of error, from any of the superior courts, are to be returnable only in the Court of Exchequer Chamber in the first instance.

This reasonable sum is double the yearly value, and double costs of the action. Reg. Gen. H. T. 2 W. IV.

Keen d. Lord Byron v. Deardon, 8 East, 298.
Thomas v. Goodtitle, 4 Burr. 2501.

• Doe d. Durrant v. Moore, 7 Bing. 124.
'Doe d. Webb v. Goundry, 7 Taunt. 427.
Doe d. Messiter v. Dinely, 4 Taunt. 289.
Wharod v. Smart, 3 Burr. 1823.

(20 Eng. C. L. 73.)
(2 Eng. C. L. 164.)

will re

as the demise, term, &c., may be laid many different ways, the When a judgment in this action can never be final, for it cannot be made court of appear that the second ejectment is brought upon the same equity title as the first. A judgment in ejectment is not admissible in strain a evidence in a subsequent action even between the same par- party from ties. It follows, therefore, that the unsuccessful party, whether bringing plaintiff or defendant, may bring a new action; but after three further ejectments. or four actions, in case of a vexatious prosecution of ejectment, the court of Chancery has sometimes interfered, to establish the title of the prevailing party, by granting a perpetual injunction restraining the other party from any further proceedings in ejectment.

SECTION XVIII.

TRESPASS FOR MESNE PROFITS.

THE action of ejectment being a fictitious proceeding, the plaintiff is entitled to nominal damages only; for the real damage *which he has sustained in consequence of the tortious *950 possession of the defendant, the law has provided another remedy, by an action of trespass vi et armis, generally termed an action for mesne profits, which may be brought by the plaintiff, in his own name, or in that of the nominal lessee, against the tenant in possession; it is however usual, and indeed more advantageous, to bring the action in the name of the lessor of the plaintiff, as he may then upon proper proofs recover damages for the rents and profits received by the defendant anterior to the day of the demise in the ejectment, which cannot be done in an action at the suit of the nominal lessee.b(1)

A joint action for mesne profits may be supported by several lessors of a plaintiff in ejectment, after a recovery therein; although there were only separate demises by each. So an action for mesne profits lies where one tenant in common recovers against another in ejectment by default.d

It is, however, doubtful whether the action can be maintained

• Barefoot v. Fry, Bunb. 158. Leighton v. Leighton, 1 P. Wms. 671. Earl of Bath v. Sherwin, Bro. Cas. Parl. 270.

B. N. P. 87. Adams, 382. Though it was formerly doubted, it is now settled, that an action of trespass for mesne profits (including the costs of the ejectment) may be brought in the name of the lessee against the tenant in possession, after judgment by default as well as after judgment upon verdict. Aslin v. Parkin, 2 Burr. 665. 2 Lord Kenyon, 276. S. P. Gulliver v. Drinkwater, 2 T. R. 261. Chamier v. Llingon, 2 Chitty, 410. (18 Eng. C. L. 382.)

Goodtitle v. Tombs, 3 Wils. 168.

(1) (Lloyd v. Nourse, 2 Rawle, 49. Jeffries v. Lane, 1 Miles, 287. Morgan v. Varick, 8 Wend. 587.)

Declaration.

a

against a tenant for the holding over of his undertenants, for it should be brought against the person in actual possession and trespassing. But any person so found in possession after a recovery in ejectment is liable to the action; and it is no defence to say that he was upon the premises as the agent and under the license of the defendant in ejectment, for no man can license another to do an illegal act.b

The action for mesne profits may be brought pending a writ of error in ejectment, and the plaintiff may proceed to ascertain his damages, and to sign his judgment; but the court will stay execution until the writ of error is determined.

The declaration in this action should state the time when the *defendant ejected the plaintiff out of the premises, and the *951 length of time he was kept out of possession, otherwise it will be bad on special demurrer, though cured by verdict or judgment by default." It should also state the different parcels of land from which the profits arose. It is usual to adopt the description of the premises which was given in the declaration in the ejectment. In the statement of damages the costs should be included; and if any particular waste or injury was done to the premises by the defendant, it should be specially stated."

Pleadings

Evidence.

The general issue is not guilty; under this plea 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. As the damages are unliquidated, bankruptcy is no answer to this action, nor can a discharge under the insolvent debtors' act be pleaded in bar. But the statute of limitations may be pleaded to a demand for mesne profits accruing more than six years before the commencement of the action.j

When the plaintiff proceeds only for the recovery of mesne profits accruing subsequent to the day of the demise in the declaration, it is sufficient for him to produce the judgment The judg- in ejectment, and prove the value of the profits. It was ment in formerly considered that the judgment in ejectment was conejectment clusive evidence of the plaintiff's right of possession at the clusive evi- time of the demise in the declaration. But in a recent case, dence of where the declaration was in the ordinary form, and the dethe plain- fendant pleaded, that as to all trespasses alleged to have been tiff's right committed before 1834, the plaintiff had no title to the possesto the presion of the land at that time; and as to all subsequent tres

is not con

mises, un

Burne v. Richardson, 4 Taunt. 720.

"Girdlestone v. Porter, Woodf. L. & T. 673.

2 Sell. Prac. 226. Adams, 384.

Higgins v. Highfield, 13 East, 407. 4 Ann. c. 16.

1 Ch. Pl. 196.

Doe v. Leo, 4 Taunt. 459.

Id. Adams, 385.

Goodtitle v. North, Doug. 584.

Lloyd v. Peel, 3 B. & A. 407. (5 Eng. C. L. 329.)

j B. Ñ. P. 88.

* Aslin v. Parkin, 2 Burr. 665. B. N. P. 87. And see Bird v. Randall, 3 Burr. 1345. Dodwell v. Gibbs, 2 C. & P. 615. (12 Eng. C. L. 289.)

pel.

passes, he paid money into court, and denied damages ultra less pleadthat sum; at the trial the judgment in ejectment, which had ed by way of estopbeen suffered by default, was produced in evidence. The re*cord contained two demises, one in 1834, and one at an earlier *952 period. The defendant proposed to show by evidence that the title of the plaintiff did not accrue before 1834; but the judge rejected the evidence on the ground that the judgment was conclusive against the defendant. The Court of Exchequer, however, held that the evidence was irresistible, on the ground that a judgment between the same parties was not conclusive unless pleaded as an estoppel, such being the general rule of law since the decision of Vooth v. Winet, which was not distinguishable in principle from the present case. Mr. Baron Bolland, in delivering the judgment of the court, said that the dicta of Lord Mansfield, in Aslin v. Parkin, and in Bird v. Bardall were not entitled to much weight, because they might be explained on the supposition that the point was not specifically presented to the court."

In case of judgment by default against the casual ejector, no rule having been entered into, the plaintiff must also produce the writ of possession executed, which is done by producing an examined copy of the writ, and of the sheriff's return. But if the plaintiff has been let into possession by the defendant he need not prove the execution of the writ of possession.d

Where the premises were in the possession of a tenant, and there was judgment in ejectment against the casual ejector; in an action against the landlord for the mesne profits and costs of the ejectment, it was held that the judgment in ejectment was 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 was held to amount to an admission that he was liable to the action.e

ment is ad

Judgment in ejectment is evidence only against the parties When who are privy thereto; it is therefore not evidence against a judgment *previous occupier; nor is judgment against the wife, evidence in ejectagainst the husband, for the wife's confession of a trespass missible committed by her cannot be evidence to affect her husband in an in eviaction in which he is liable for the damages and costs. But it dence. is evidence against a person who comes in under the defendant *953 pending the judgment in the ejectment. A judgment in ejectment on the several demises of two, will be evidence in an action of trespass brought by them jointly. The consent rule

admits the possession at the time of the service of the declaration in ejectment; but if the plaintiff intends to go for mesne profits, antecedent to that time, he must give distinct evidence of the defendant's possession," and also give evidence of his own title.b

Damages As this is an action of trespass vi et armis, the jury may and costs. give such damages as in their opinion the circumstances of the case require. If the ejectment has been defended, the taxed costs only, and not the extra costs are recoverable. In one case, however, the court allowed the plaintiff to recover the full costs as between attorney and client, of reversing in a court of error a judgment for the defendant in the ejectment, although they were costs which the court of error had no power to allow.d Where the defendant has appeared and pleaded in ejectment, the costs may be recovered though they have not been taxed.

When a landlord proceeds against his tenant, pursuant to the provisions of 1 G. IV, c. 87, we have seen that he may recover the mesne profits in the action of ejectment, accruing due from the day of the determination of the tenancy, until the day of the trial or a preceding day to be specially mentioned therein. It is, however, optional with him to adopt that mode of proceeding, or to bring an action for the mesne profits; and *954 *if he does resort to the former mode, he will not thereby be precluded from bringing trespass for the subsequent profits; for the act provides, " that nothing therein contained shall bar the landlord from bringing trespass for the mesne profits which shall accrue from the verdict or the day so specified, down to the day of the delivery of possession of the premises recovered."