On a Forfeiture. 205. a. Part II. lease is absolutely at an end, and cannot be afterwards set up; but it is said, that, in the case of a lease for life, the lessor could not Co. Lit. determine the lease without entry, and, therefore, the forfeiture may be waived by any act which treats the lessee as his tenant, after notice of the forfeiture, notwithstanding the deed Williams' declares that the lease should cease and be Saunders, 287. b. void.2 2 Vide SECTION IV. Of the Evidence in Ejectment by Creditors who have a Lien on the Land. Evidenceby A Mortgagee may maintain an ejectment Creditors. against his mortgagor, immediately after the day of payment; and, though the mortgagor may, by statute 7 Geo. II. c. 20. obtain relief by motion, on certain conditions, yet, on a trial, the proof will be very simple. If the mortgagor be himself in possession, proof of the execution of the deeds will be sufficient, for, as was said before, he cannot set up any title inconsistent with his own deed; but if a third ante, 317. person is in possession, the lessor of the plaintiff should also prove, that such third person has paid rent to, or otherwise acknowledged the title of the mortgagor; and it should also 3 Vide be gagee, &c. be shewn when he came into possession, for if Ch.IX. f.z. his interest commenced previous to the mort- By Mort gage, notice to quit must be given to him ;' (0) but if the mortgagor, continuing in possession, demise the premises after the mortgage, without the consent of the mortgagee, no notice is necessary. a The next case which occurs is that of creditor who has sued out an elegit. He must prove an examined copy of the judgment, and of the award and return of the elegit, entered on the roll, and also an examined copy of the elegit itself, and the inquisition taken on it,3 by which the land in question has been assigned to him. If by that it appear that more than a moiety is extended, he cannot recover; but it is immaterial whether a moiety of each individual close or tenement, or a moiety of the whole in value be extended.' Vide Wright, Birch v. 1 T. Rep. 379. Warne v. Dougl. 21. Abing. don, Dougl. 472. The conusee of a Statute Merchant, in case Bul. N. P. he bring an ejectment, must prove a copy of 104. the statute, of the capias si laicus, extent and (0) It is said to have been ruled, in White v. Hawkins, B. N. P. 96, that if a mortgagee give the tenant notice that he wishes only to get into the receipt of the rents and profits, no notice to quit is necessary, though the mortgage were subsequent to the tenant's lease; and in Dougl. 23. Lord Mansfield is said to have approved of this decision. But in Doe dem. Dacosta v. Walton, 8 T. Rep. z. where a creditor by elegit brought an ejectment against a tenant, under a lease prior to the judgment, having first given notice that he did not mean to disturb the tenant's possession, his object being only to get into the receipt of the rents and profits; the Court held, that the legal title must prevail, and that the ejectment could not be supported. liberate Y 2 By Tenant Part II. liberate returned; for though by the return of the extent an interest is vested in the conusee, yet the actual possession of that interest is acquired by the liberate. by Elegit. The same observation applies to these cases as was before made on that of a mortgagee. If the debtor himself be in possession, this formal evidence is sufficient; but when the possession is in a third person, the plaintiff must either shew that such third person claims under the dem. Da- debtor, and that the defendant's incumbrance is posterior to his own, or else be prepared with evidence to support the debtor's title.' • VideDoe Costa V. Walton, note c. Mesne Profits. СНАР. Х. OF EVIDENCE IN THE ACTIONS FOR MESNE N the Action for Mesne Profits, against the tenant in possession after judgment in cjectment, the title of the plaintiff, or his lessor, subsequent to the day of the demise in the declaration, cannot be disputed; and, therefore, whether the action be brought in the name of the nominal plaintiff in ejectment, or in that of his lessor, this fact, and that of the plaintiff's possession, are sufficiently established by proof of examined copies of the judgment in ejectment, 11 ment, of the writ of possession, and of the Ch. X. sheriff's return thereon. (p) In addition to this evidence, the plaintiff must prove the length of time that the defendant has been in possession of the land, the annual value, or value of the crops taken from it, and the costs of the ejectment, in case they have not been already recovered. He may also, when such fact is specially alledged in the declaration, give evidence of any injury done to the premises, in consequence of the misconduct of the defendant after the expiration of the tenancy. Mesne Profits. Atkins, B. N. P. 87. If the plaintiff seck to recover profits accrued Dacosta v. before the time of the demise laid in the declaration, he must, in addition to the former evidence, prove his title; and, as the nominal (p) Mr. J. Buller, (N. P. 87.) says, that, when the judgment is against the tenant in possession, and the action of trespass is brought against him, it seems sufficient to produce the judgment, without proving the writ of possession executed; and Mr. Serj. Runnington, (Law Eject. 242.) says, that such is the practice. Both agree that the practice is otherwise where there has been a judgment by default; but the latter author observes, that this piece of evidence does not seem to be necessary in either case, for as the tenant is concluded by the judgment in ejectment from controverting the plaintiff's title, he is consequently precluded from disputing his possession, which in this possessory action is part of it. The grounds on which the Court proceeded in Astlin v. Parkin, (2 Burr, 667.) appear to warrant this observation; but, in the course of the argument of Compere v. Hicks, 7 T. Rep. 730. the Court is reported to have said, "That confession of lease, entry, and ouster, will not enable the party to recover the mesne profits. The plaintiff must have a writ of possession, and then the entry under it wilf be referred to the time of the title." Part II. plaintiff has not any title, the action, in such Mesne Profits. Ibid. cases, must always be brought in the name of his lessor. The defendant will be at liberty to controvert this title. In like manner when the action for mesne profits is brought against a person who had parted with the possession previous to the action of ejectment, the plaintiff must prove his title; for the recovery in ejectment is no evidence against a person who was not in possession, and, therefore, could not be served with it; and even if recovered against 7 T. Rep. the wife, as tenant in possession, and an action for the mesne profits be afterwards brought against the husband and wife, such judgment Bal. N. P. is not admissible as evidence. In this case, of $7. an action against a person who had quitted possession before the ejectment, the plaintiff must also prove an actual entry, for otherwise trespass, which is a possessory action, cannot be maintained. Dunn v. White, 112. Compere v. Hicks, 727. Where an entry was necessary to avoid a 7 T. Rep. fine, the defendant may, by proof of the fine, prevent the plaintiff from recovering any profits which accrued before the time of the entry, which in such case the plaintiff should be prepared to prove. In cases where the plaintiff does not enter into evidence of title, the defendant's evidence will of course be confined to the value of the profits, and the time of his possession; and if the plaintiff claim profits for more than six years, the defendant must plead the Statute of Limitations, |