That was an action of trespass for mesne profits against several defendants: plea by two of them (husband and wife), that the husband became bankrupt after the cause of action accrued: general demurrer. In support of the demurrer, it was contended, that the statute of 5 Geo. 2. c. 30. which gives this plea, only speaks of debts due before the bankruptcy, and that an injury by entering the plaintiff's close, cannot constitute a debt. That a party could not in any case of tort, liquidate his own demand for damages, and swear to it before the commissioners: it could only be ascertained by the intervention of a jury: the rent was not a sure criterion. That more than five years rent had been given by verdict, for only one year's possession. No debt therefore could have been proved for such a cause of action under the commission, therefore the bankruptcy was no bar. For the defendants, it was admitted that bankruptcy was no bar to demands for torts in general. But here, though the form of the action was trespass, yet the demand, in substance, was for a debt, viz. the annual value of the land, and might have been the subject of an action for use and occupation, in bar to which the bankruptcy might be pleaded. In reply, it seemed agreed, that to an action for use and occupation, bankruptcy might be pleaded; and that it had been decided, that a party who goes for mesne profits after judgment in ejectment, might waive the trespass, and bring an action on the case for use and occupation. But it was insisted, that when he does not waive it, the amount of his demand, or what a jury might think him entitled to, was uncertain; many things might increase the amount of the damages, as particular circumstances of inconvenience to the plaintiff from having been kept out of posses sion, &c.-Lord MANSFIELD. The form of the action is decisive. The plaintiff goes for the whole damages occasioned by the tort, and when damages are uncertain, they cannot be proved under a commission of bankruptcy.-ASHHURST, J. The plaintiff goes for a compensation in damages, the amount of which is uncertain, and cannot be sworn to before the commissioners, but must be ascertained by a jury upon, all the circumstances.-BULLER, J. The damages here are as uncertain as in an action of assault.-Judgment for the plaintiff (a). But it is doubtful whether a tenant whose undertenant retains possession after the term be liable for mesne profits, as the defendant should be the person in actual possession and trespassing (b); and the measure of damages will depend upon the time such person may have been in the possession (c). OF THE WRIT quare ejecit infra terminum. THE writ quare ejecit infra terminum lieth, where a man leaseth lands to another for years, and after he entereth and maketh a feoffment in fee, or for life, of the same lands to a stranger; in which case the lessee may have this writ against the feoffee or lessee for (a) But see Uiterson v. Vernon, Maddon v. White, Doe v. Jackson, 3 T. R. 539. 2 T. R. 261. Doug. 175. (b) Burne v. Richardson, 4 Taunt. 720. (c) Gudleston v. Porter, K. B. Mich. Term, 39 G. 3. life. In short, it lieth by the ancient law, where the wrong-doer or ejector is not himself in possession, but another who claims under him (a). And he shall recover his term again, and damages also, if the term be not ended; if it be ended then, all his damages. Yet if the term expire pending the writ, the writ will not abate (b). The process on the writ is summons, attachment, and distress infinite, and not process of outlawry, because the writ is not vi et armis (c). This writ was devised, as it is said (d), by 66 a wise man, called William Moreton," who adopted it for the following reason. If a man had leased land for years, and after had ousted his lessee, and made a feoffment of the land, to a stranger in fee, the lessee could not have a writ of ejectione firmæ against the feoffee, because he did not put him out of possession; his only remedy being by entering again upon the land, and then if the feoffee put him out, the lessee might have a writ of ejectione firmæ, vi et armis against him, for the wrong done him. But before entry he had no remedy against the feoffee; for he could not sustain an ejectment, no force having been used; and there could be no force where there was no entry: the lessee therefore was without remedy, any otherwise than by entering on the land; which he had authority to do by his lease. But sometimes men of opulence and power, BY FORCE, kept out their lessees, with whom they had (a) F. N. B. 197. S. 3 Comm. 206. (6) F. N. B. 197. T. (c) F. N. B. 198. U. contracted, contracted, and who dared not enter; in such case, the tenant was without an adequate remedy, until this writ was devised. It was devised by the equity of the statute of Westminster 2, c. 24. which enacts, that "as "often as it shall happen in the chancery, that in one "case a writ is found, and in like case, falling under "the same law, and wanting the same remedy, none "is found, the clerks of the chancery shall agree in "making a writ." Yet if the lessor put out the lessee, and presently make a feoffiment in fee, so as the feoffee be party or privy to the ouster of the lessee, the lessee shall have a writ of ejectment vi et armis against the feoffee because he is party to the ouster, and to the wrong done him (a). The writ: Rex vic', &c. salutem: si A. fecerit, &c. tunc sum' &c. B. quod sit, &c. ostensurus quare deforc' præfat' A. unum messuag' cum pertin. in N. quod C. ei dimisit, ad terminum qui nondum præteriit; infra quem terminum, idem C. præfat? B. messuag' illud vendidit ; occasione cujus venditionis idem B. præfat' A. de messuag' prædict' ejecit, ut dicitur; et habeas, &c. (b). It lieth where the son and heir of the lessor maketh a feoffment, &c. and the feoffee ousteth the lessee (c). And if the lessee grant over his term, and afterwards the lessor make a feoffment in fee of the land to a (a) F. N. B. 198. B. (b) Ibid. (c) F. N. B. 198. C. stranger, stranger, the second lessee may have this writ: and the writ shall be (a): Quare deforc' præfat' B. unum messuag', &c. quod R. (cui L. illud dimisit ad terminum qui nondum præ-' teriit,) eidem B. dimisit ad eundem terminum, &c. So, if four let a house to A. for years, who granteth over his estate to B. and afterwards two of the lessors die, and the survivors make a feoffinent to Ç. in fee; B. may have a quare ejecit infra terminum against the feoffee; but the writ must recite the special matter. And if a man lease land for years, and the lessor suffer a recovery to be had against him upon a feigned title, and the recoveror entereth, yet it seemeth that the lessee shall have this writ: and in such case, the words of the writ are "occasione cujus venditionis," and yet the same is not properly a sale. Those words are only words of form (b). Before the statute of 21 H. 8. c. 15. it seems that the tenant for years could not have falsified the recovery against his lessor; the reason is that, at the common law, terms for years were only small interests, being generally from year to year; and termors were looked on merely as bailiffs to the freeholders. These terms were only on contract, and if the termors were ejected, they only had remedy on their covenants, against their lessors. The statute. of Vestm. 2. which permitted the quare ejecit infra terminum, was the first statute which (a) F. N. B. 198. D. (b) F. N. B. 198. E. |