court of law, and by an injunction at the instance of the defendant, who ultimately failed both at law and in equity, the Court decreed an account of the mesne profits against his (the defendant's) executors. (y)

It is also doubtful, whether the action can be maintained against a tenant for the holding over of his undertenants, for it should be brought against the person in actual possession and trespassing.(z) But any person so found in possession after a recovery in ejectment, is liable to the action [1] 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, But the measure of for no man can license another to do an illegal act.

(y) Pulteney v. Warren, 6 Ves. J. 73.

(z) Burne v Richardson, 4 Taunt. 720.

[1] Where, during the pendency of an action of Ejectment, the defendant. gives up the possession to a third person and afterwards the plaintiff recovers judgment, such third person is liable for the Mesne Profits; the recovery in Ejectment is conclusive evidence against him, and he cannot set up a title in himself as a bar. Jackson vs. Stone, 13 Johns. Rep. 447.

And, it seems, a verdict in Ejectment is evidence in an action for Mesne Jackson ex dem. Profits, against any one in possession of the premises. Church vs. Hills, & Cowen's Rep. 290.

If the tenant have made improvements on the land, under a contract with the owner, he will not be allowed for them in this action, when brought by a devisee, but must seek his compensation from the personal representatives of the devisor. Van Alen vs. Rogers, 1 Johns. Cas. 281.

It lies against a person who has entered under a contract for a deed, and afterwards refuses to perform the contract. Smith vs. Stewart, 6 Johns. Rep. 46.

In relation to third persons the judgment in Ejectment is not conclusive; and if they be sued in an action for Mesne Profits, they may controvert the plaintiff's title at large. Chirac & Al. vs. Reinicker, 11 Wheat. Rep.

280.

In such suit the record of the Ejectment is not evidence to establish the plaintiff's title, but it is admissible in connexion with an executed writ of possession, to show the fact of possession. Ibid.

The action for Mesne Profits may be maintained against the landlord in fact, who has been in possession of the land by means of his tenants, and who, by his acts, commands, or co-operation, aids in the expulsion of the plaintiff, and in withholding possession from him. Ibid.

The plaintiffs in such case are not estopped by the consent rule, in the action of Ejectment, by which another person was admitted to defend the landlord. Ibid.

Notice of an Ejectment suit. or defence of the suit, by a person, not tenant in possession, or defendant on record, does not make him party to the suit in contemplation of law, so as to conclude his rights. Chirac & Al.

vs. Reinicker, 11 Wheat. Rep. 280.

the damages in such case will not be the whole mesne profits of the lands, but will depend upon the time such person has had them in his occupation, together with the other circumstances of the case.(a)

In the case of Keech, d. Warne, v. Hall,(b) where it was decided that a mortgagee might recover in ejectment, without a previous [*332] notice to quit, against a tenant claiming *under a lease from the mortgagor, granted after the mortgage without the privity of the mortgagee, it was asked by the counsel for the defendant, if such mortgagee might also maintain an action against the tenant for mesne profits, which would be a manifest hardship and injustice to the tenant, as he would then pay the rent twice. Lord Mansfield, C. J. gave no opinion on that point; but said, there might be a distinction, for the mortgagor might be considered as receiving the rent in order to pay the interest, by an implied authority from the mortgagee until he determined his will. (c)

The declaration in the action for mesne profits must expressly state the different parcels of land from which the profits arose, or the defendant may plead the common bar. It should also state the time when the defendant broke and entered the premises and ejected the plaintiff, the length of time during which he so ejected him, and the value of the mesne profits of which he deprived him; and a declaration which does. not contain these statements will be holden ill on special demurrer: but the defect is cured by verdict, or after judgment by default and writ of inquiry executed, by the operation of the stat. 4 Ann. c. 16.(d)

In the statement of the damages in the declaration the costs of the cjectment may be included, whether the judgment be against the casual ejector, or against the tenant or landlord; and when the judgment is against the casual ejector for want of an appearance, the costs are invariably included in the statement of the damages, though it ap[*333] *pears more prudent for reasons already assigned in other cases, to omit them. (e)

The general issue is not guilty, [1] and if the plaintiff declare against

(a) Girdlestone v. Porter, K. B. M. T 39. Geo. III. Wood. L. and T. 511

(b) Doug. 21.

(e) Et vide 4 Ann. c. 16. s. 10.

(d) Higgins v. Highfield, 13 East. 407.

(e) Gulliver v. Drinkwater, 2 T R. 261. Doe v Davies, 1 Esp. 358, et vide Utterson v. Vernon, 3 T. R.. 539 47. Ante, 302

[1] An action for Mesne Profits is an equitable action, and will allow of

the defendant, for having taken the mesne profits for a longer period than six years before action brought, the defendant may plead the statute of limitations, namely, not guilty within six years before the commencement of the suit, and thereby protect himself from all but six years.( Bankruptcy is no plea in bar to this action, for the plaintiff does not demand the value of the land only, but the whole damages sustained by the tort; and as the damages are uncertain, they cannot be proved under a commission of bankruptcy, but must be ascertained by a jury under all the circumstances of the case.(g) The stat. of 49 Geo. III. c. 121. s. 9. which directs, that all persons who shall have given credit upon good and valuable consideration bona fide, for any money whatsoever, which is not due at the time of the bankruptcy, shall be admitted to prove such debts, &c. has been holden not to extend to damages recoverable in an action for mesne profits. (h)

As, also, this action is for a tortious occupation, the defendant cannot pay money into Court.(i)

It was formerly holden, that if the action for mesne profits were brought in the name of the claimant in the ejectment, or after a judgment by default against the casual ejector, the defendant was

(f) B. N P. 88.

(g) Goodtitle v. North, Doug. 584.

(h) Moggridge v. Davls, 1 Whit. 16.] (i) Holdfast v, Morris 2 Wils 115.

every kind of equitable defence. Murray vs. Governeur, (IN ERROR,) 2 Johns. Cas. 438.

A recovery in trespass for Mesne Profits, is only for the Use and Occupation of land, and does not bar an action of trespass Quare Clausum Fregit, for injuries done to the premises during the same period. Gill vs. Cole. 1 Harr. & Johns. Rep. 403.

If the plaintiff can prove that his title accrued before the time of the demise in the Ejectment, and that the defendant has been longer in possession, he may recover antecedent profits; but in such case the defendant is at liberty to controvert his title. West vs. Hughes, 1 Harr. & Johns. Rep.

574.

In trespass for the Mesne Profits, the defendant is not estopped by the judgment in Ejectment from showing that the plaintiff was in possession of the land, between the demise laid in the declaration and the judgment.— Ibid.

The defendant in Ejectment is not estopped from pleading Liberum Tenementum to trespass for the Mesne Profits, where the term was expired when the judgment in Ejectment was entered. Murphy vs. Guion's Ex'r., 2 Hayw. Rep. 381.

at liberty to controvert the plaintiff's title; because the plain[*334] tiff in the action for mesne *profits, in the one case, and the defendant in the other, were not parties to the record in the previous ejectment, and, therefore, no estoppel could arise either against, or in favor of either of them, by such record (j) But it is now settled, that after every recovery in ejectment, the tenant is estopped from controverting the title of the plaintiff in a subsequent action for mesne profits, provided the plaintiff proceed only for the profits accruing subsequently to the time of the ouster in the ejectment. [1] If, however,

(j) 1 Lill. Prac. Reg. 676. Jeffries v. Dyson, Stran. 960.

[1] The record of recovery in Ejectment, is conclusive evidence of title in the lessor of the plaintiff, from the time of the demise laid, against the defendant and his servants; who cannot, therefore, in bar of an action of trespass, shew title in another after that time. Dewey vs. Osborn, 4 Cowen's Rep. 329.

Where there are several separate demises in a declaration in Ejectment, an action of trespass against the defendant or his servants may be maintained in the name of that lessor upon whose title the recovery was had; and where it appeared that the sheriff delivered possession to one of the several lessors under the Hab. Fac. Poss., this was held Prima Facie evidence that the recovery was upon his title. Ibid.

The plaintiff is entitled to the Mesne Profits, from the time of the demise laid in the declaration in Ejectment. Van Alen vs. Rogers, 1 Johns. Cas.

281.

The right to Mesne Profits is a necessary cousequence of a recovery in Ejectment. Benson & Al. vs. Matsdorf. 2 Johns. Rep. 369.

The defendant cannot set up a title in bar, even if he have a better title. Burton & Al. vs. Matsdorf, 2 Johns. Rep. 369. SAME POINT, Jackson vs. Randall, 11 Johns. Rep. 405.

So, where the lessor had taken possession under the judgment in Ejectment, and brought his action for the Mesne Profits, and the defendant had, in the mean time, brought Ejectment for the same premises, and obtained a verdict; he cannot set up the verdict as a bar to the action for Mesne Profits. Jackson vs. Randall, 11 Johns. Rep. 405.

No defence can be set up in the action for Mesne Profits, which would have been a bar to the action of Ejectment. Baron vs. Abeel, 3 Johns. Rep. 481. SAME POINT, Jackson vs. Randall, 11 Johns. Rep. 405. gendyck vs. Burhans, 11 Johns. Rep. 461.

Lan

After a recovery in Ejectment, the lessor of the plaintiff brought trespass for Mesne Profits, and pending the suit, conveyed the premises to the defendant, with all his right, title, interest, and claim in the same: Held, that the deed was not a release of the Mesne Profits, but that the plaintiff might nevertheless recover in the action. Duffield vs. Stille, 2 Dall. Rep. 156, S. C. 1 Yeates' Rep. 154.

he seek to recover profits antecedent to the demise therein, or bring his action against a precedent occupier, the record in the ejectment cannot be given in evidence, but the plaintiff must prove his title to the premises, from whence the profits arose, to entitle him to receive them.(k)[2]

He must, also, in such case, prove an entry upon the lands, though some doubt seems to exist as to what proof of entry will be sufficient. By some it has been said, that the plaintiff is entitled to recover the mesne profits only from the time he can prove himself to have been in possession, and that, therefore, if a man make his will and die, the devisee will not be entitled to the profits until he has made an actual entry, or in other words, until the day of the demise in the ejectment; for that none can have an action for mesne profits unless in case of actual entry and possession. Others have holden, that when once an entry has been made, it will have relation to the time the title accrued, so as to entitle the claimant to recover the mesne profits from that time; and they say that if the law were not so, the Courts would never have suffered plaintiffs in ejectments to lay their demises back in the manner they *now do, and by that means entitle themselves to recover [ *335 ] profits, to which they would not otherwise be entitled.(1) The latter seems the better opinion; but these antecedent profits are now seldom the object of litigation, from the practice of laying the demise and ouster immediately after the time when the lessor's title accrues.(m) It should, however, be observed, that when a fine with proclamations has been levied, an entry to avoid it will not, in this action, entitle the plaintiff to the profits between the time of the fine levied, and the time

(k) Bull. N. P. 87. Aislin v. Parkin, Burr. 665. S. C. Barn. 472.

() Metcalf v. Harvey, 1 Ves. 248, 9.-B. N. P. 87.

(m) Ante, 189.

In general, a recovery in Ejectment, like other judgments, binds only parties and privies. Chirac & Al. vs. Reinicker, 11 Wheat. 280.

But such judgment is conclusive evidence, in an action of Mesne Profits, against the tenant in possession, when he has been duly served with a notice in Ejectment, whether he appears and takes upon himself the defence or suffers judgment to go by default against the casual ejector. Ibid.

[2] If the plaintiff claims damages for the occupation prior to the demise in the declaration in Ejectment the defendant may dispute the title prior to that time. Jackson vs. Randall, 11 Johns. Rep. 405

In trespass for Mesne Profits, an innocent possessor may set off improvements. Maris vs. Simple. Addis. Rep. 215.