court will not oblige the sheriff to return it, except at the instance of the plaintiff. But, after possession has been given under the writ, the plaintiff cannot sue out another writ, although he is disturbed by the same defendant, and though the sheriff have not returned the former writ; for an alias cannot issue after a writ is executed; if it could, the plaintiff, by omitting to call on the sheriff to make his return to the writ, might retain the right of suing out a new hab. fac. poss., as a remedy for any trespass which the same tenant might commit within twenty years next after the date of the judgment (t). But he may in such a case apply to the court for a rule for a fresh writ (u). A writ of possession is not necessary, if the defendant acquiesces in the judgment, and goes out of his own accord; Wilkinson v. Kirby, 15 C. B. 430; per Parke, B., 11 Exch. 32. Costs. The court will, in the exercise of their equitable jurisdiction (ante, p. 758), compel the real defendant to pay the costs, although he is not a party to the record (x); but it must be shown that the defence was conducted for his benefit, and it is not enough to show that he is interested, as an equitable mortgagee of part of the premises, and that he has endeavoured to make terms with the plaintiff since the judgment. Anstey v. Edwards, 16 C. B. 212. Where three ejectments were brought against a landlord and his two tenants, and the landlord obtained a rule for the consolidation of the three actions, and that the ejectment against one of the tenants (a pauper) should abide the event of the ejectment against the other, and that action was tried, and the plaintiff obtained judgment, and took possession of all the three tenements, the court compelled the landlord to pay the costs of that ejectment (y). XII. Error. By the C. L. P. Act, 1852, s. 208 (z), error may be brought after a special verdict, bill of exceptions, or by consent after a special case (a), but execution shall not be thereby stayed, unless the plaintiff in error shall within four days of lodging the memorandum of error, or after judgment, or before execution, be bound to the claimant in double the yearly value of the property, and double the costs recovered, on condition to pay such costs, damages, and sums of money, as shall be awarded, upon or after (t) Doe v. Roe, 1 Taunt. 55; but see Kingsdale v. Mann, 1 Salk. 321. (u) Doe v. Roe, 2 D. N. S. 407. (x) Doe v. Gray, 10 B. & C. 615; Hutchinson v. Greenwood, 4 E. & B. 324, асс. (y) Thrustout v. Shenton, 10 B. & C. 110. (z) This is substantially a re-enactment of 16 & 17 Car. II. c. 8, s. 3. (a) By the Com. Law Proc. Act, 1854, s. 32, error may be brought upon a special case in the same manner as upon a special verdict, unless the parties agree to the contrary. such judgment affirmed, or discontinuance. Although the words of the statute seem to require a recognizance by the plaintiff in error himself, yet it has been held, that the intention of the legislature will be satisfied by the plaintiffs in error procuring responsible persons to enter into the obligation required (b). The plaintiff in error is not bound to give the defendant in error notice of his entering into the recognizance (c). By the same section, in case of affirmance or discontinuance, the court may, on the application of the claimant, issue a writ to inquire of the mesne profits, and of the damage by any waste committed after the first judgment; and are, on the return thereof, to give judgment, and award execution for the same, and costs. The bail in error are not chargeable for mesne profits in an action upon their recognizance, unless the amount be ascertained as above directed (d). In cases between landlord and tenant this security is in addition to the bail for the damages and costs required by section 213 (e). XIII. Of the Action of Trespass for Mesne Profits (ƒ). The judgment in ejectment under the Common Law Procedure Act, 1852 (see Sched. A., form 14 et seq.), is for the recovery of possession of the property and costs only; and no damages are recoverable except in cases between landlord and tenant under sect. 214, and then only at the option of the landlord. For the damage sustained by the plaintiff in being kept out of the rents and profits of the land, the law has provided another remedy, namely, by an action which may be brought by the plaintiff in ejectment against the person in actual possession, or the landlord who has been let in to defend the ejectment (g), for mesne profits. This action is, in form, one of trespass, because, by bringing ejectment, the plaintiff treats the defendant as a trespasser, on and from the day mentioned in the writ (h); and in it 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 for default of appearance to the writ (i) (sect. 177), or where the plaintiff has incurred costs in a court of error in reversing a judgment of ejectment obtained by the defendant (j). This action is local in its nature, and must be brought in the county where the lands lie. It may be brought by one tenant in common, who has (b) Keene v. Deardon, 8 East, 298. (f) This action is not maintainable after an award by an arbitrator of a certain sum for land which has been wrongfully taken by a railway company, an ejectment brought therefor, and the ac tion and all matters in difference referred by an order of Nisi Prius to such arbitrator. Smalley v. Blackburn Railway, 27 L. J., Exch. 65. (g) Doe v. Challis, 17 Q. B. 166. (h) Per Ashhurst, J., Birch v. Wright, 1 T. R. 387. (i) Doe v. Huddart, 2 C. M. & R. 316. (j) Nowell v. Roake, post, p. 763. recovered in an action of ejectment by default, against his companion (k). By the Common Law Procedure Act, 1852, s. 214 (7),—“Whereever it shall appear on the trial of any 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 judge before whom such cause shall be tried shall, whether the defendant shall appear or not, permit the claimant, after proof of his right to recover possession of the premises mentioned in the writ, to go into evidence of the mesne profits, which shall or might have accrued from the determination of the tenant's interest to the time of the verdict, or to some preceding day to be specially mentioned therein: and the jury shall, in such case, give their verdict both as to the recovery of the premises, and also as to the amount of the damages to be paid for such mesne profits, &c. Provided that nothing hereinbefore contained shall be construed to bar any landlord from bringing any action for the mesne profits, which shall accrue from the verdict, or the day so specified, down to the delivery of possession of the premises recovered. See ante, p. 757. Evidence. The evidence necessary to support this action, after judgment against the tenant in possession, is as follows:-an examined copy of the judgment in ejectment, or an office copy where the action is in the same court, and the parties are the same (Taylor on Evidence, sect. 1382; proof of the length of time during which the defendant has, either actually or constructively, occupied; of the value of the mesne profits, and of the costs of executing the writ of possession. Before the Common Law Procedure Act, 1852, where the judgment was against the tenant in possession after verdict, it was, it seems, sufficient to produce the judgment without proving actual entry by the plaintiff, either under the writ of possession, or otherwise; because, by entering into the consent rule, the defendant. admitted lease, entry, and ouster. See Doe v. Wright, 10 A. & E. 763. But where the judgment was by default against the casual ejector, and so no rule entered into, it was held, that the plaintiff could not maintain trespass without an actual entry, and, therefore, ought to prove the writ of possession executed. Thorpe v. Fry, Bull. N. P. 87. Since that act, therefore, the plaintiff should be prepared with an examined copy of the writ of possession and return of execution (m). But 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 (n). The judgment in ejectment will be conclusive evidence against the tenant in possession of the plaintiff's title, from the day men (k) Goodtitle v. Tombs, 3 Wils. 118. (1) This is an adaptation of the 1 Geo. IV. c. 87, s. 2. (m) See per Parke, B., Barnett v. Earl of Guildford, 11 Exch. 32. (n) Wilkinson v. Kirby, 15 C. B. 430. tioned in the writ thenceforward, unless its determination on some subsequent day appear by the pleadings (o); consequently, in the action for mesne profits, it is not necessary for the plaintiff to be prepared with proof of title, except where he seeks to recover the profits antecedent to the day mentioned in the writ, or brings his action against a precedent occupier (p). But in order to render the judgment by default conclusive evidence of the title, it must be pleaded as an estoppel (q); for a judgment is in no case conclusive unless pleaded by way of estoppel (r). 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, and thereby protect himself from all but six years (s). An execution creditor is not entitled to the rent which accrues due after the delivery of the writ of elegit to the sheriff, but before the inquisition is taken (t). This action being for the recovery of damages, which are uncertain, the bankruptcy of the defendant cannot be pleaded in bar (u); and on the same principle a plea of discharge under an insolvent debtors' act is no bar (x). Nor is the pendency of a writ of error in parliament a bar in law to such an action (y). 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 (2). So a recovery in ejectment against a former tenant in possession is not 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 (a). But where the judgment was against the casual ejector, the ejectment having been served on the tenant, it was held, that the judgment was admissible against the landlord, if he had notice of the ejectment, or subsequently promised to pay the rent and costs (b). And so e converso where the judgment in ejectment was against the lessor, and the action for mesne profits against the lessor, lessee and under-lessee; it was held, that the judgment was admissible against the lessee, and that, it being proved that the lessee was in actual possession during the time for which mesne profits were claimed, through his under-lessees (from whom he had received rent, and whom he declared to be his tenants (o) Wilkinson v. Kirby, 15 C. B. 430. (P) Decosta v. Atkins, Bull. N. P. 87. (q) Doe v. Huddart, 2 C. M. & R. 316. (r) Per Parke, B., Doe v. Seaton, 2 C. M. & R. 732. (s) Bull. N. P. 88. (t) Sharp v. Key, 8 M. & W. 379. (u) Goodtitle v. North, 2 Doug. 583. when possession was demanded by the plaintiff), the plaintiff was entitled to retain the verdict he had obtained against the three defendants (c). The plaintiff brought ejectment, and judgment for defendant, which was afterwards reversed on error. The plaintiff afterwards brought an action for mesne profits, and claimed to recover by way of damages the costs in error; it was held (d), that he was entitled to recover those costs as part of the damage sustained, on the ground, it seems, that the court of error could not award costs to the plaintiff, and that such costs could not otherwise have been recovered at all (see per Vaughan, B., in Symonds v. Page, 1 C. & J. 34); but now by sect. 42 of the Common Law Procedure Act, 1854, the Court of Appeal, which by sect. 36 includes the court of error, has power to adjudge payment of costs, and to order restitution, &c. It was also held in Nowell v. Roake, that the jury might consider the costs between attorney and client as the measure of damage; and this is so, where there has been no taxation, but where there has, though at the instance of the defendant, the plaintiff is bound by it. Doe v. Filliter, 13 M. & W. 47. On the subject of costs, see 3 & 4 Vict. c. 24, ante, p. 37. (c) Doe v. Harlow, 12 A. & E. 40. (d) Nowell v. Roake, 7 B. & C. 404. |