Of quieting the Plaintiff, and of relieving him when his Poffeffion is disturbed.

law; but if he is turned out by a stranger after execution executed, the plaintiff is put to his new action upon an indictment of forcible entry, where the force will be punished, because the title was never tried between the plaintiff and a ftranger; and the ftranger may claim the land by title paramount the plaintiff, or he may come in under him, and then the recovery and execution in the former action ought not to hinder the ftranger from keeping that poffeffion which he may have a right to; and if the law were otherwise, a plaintiff, by virtue of an habere facias, might turn out his own tenant, who came in after execution executed; whereas the poffeffion was given him against the defendant only, and not against others not party to the fuit. Ratcliff v. Tate. Keb. 479.

In the cafe of Fortune and Johnfon, on motion for an attachment against Johnson, for ejecting the plaintiff who had been put into poffeffion by an habere facias, the court made no rule, because it appeared that Johnfon claimed under an elder judgment, and it was title againft title, and therefore left them to take their courfe at law. Style. 318.

The plaintiff had judgment, but by agreement afterwards, the defendant was to hold for the refidue of his term, and accordingly held for fome time; then the plaintiff took out an habere facias, and executed it; upon which the defendant moved for reftitution on the agreement, which the court refufed, and left him to his action on the agreement, for the judgment was ruled abfolutely; but if the judgment had been with a ceffat executio till fuch a time, there if the plaintiff takes out execution within the time, the defendant fhall have reftitution, because the judgment was entered with the limitation. Style 408. Law of Eject. 113.

But quære, how does this appear to the court, fince it feems a ceffat executio is never entered on the roll? The difference feems to be between a judgment by confeffion, and on verdict, where the former is given with a ceffat executio; and there, if the execution is taken out contrary to the agreement, the court will fet it afide, and punifh the attorney but where judgment is given on verdict, the verdict is the foot and ground of the judgment, and the court will not take notice of agreements between the parties, but leave' them to their remedy.

Of

Of bringing a new or fecond Ejectment.

ONE great advantage attending this action is, that a

man may have a remedy toties quoties, in being allowed to bring as many ejectments as he pleases [10 Mod. 1.] which has fometimes proved a great mifchief, but is still without remedy; for though it has fometimes been attempted in chancery, after three or four ejectments, by a bill of peace to establish the prevailing party's title, yet it hath always been denied to alter the course of law, for that every termor may have an ejectment, and every ejectment fuppofes a new demife, and the costs in ejectment are a recompence for the trouble and expence to which the poffeffor is put. But where the fuit begins in Chancery for relief touching pretended incumbrances on the title of lands, and the court has ordered the defendant to purfue an ejectment at law, there, after one or two ejectments tried, and the right fettled to the fatisfaction of the court, the court hath ordered a perpetual injunction against the defendant, because there the fuit is firft attached in that court, and never began at law, and fuch precedent incumbrances appearing to be fraudulent, and inequitable against the poffeffion, it is within the compass of the court to relieve against it.

If one has a verdict in ejectment, and cofts taxed, and an attachment iffues for the nonpayment of cofts, the defendant fhall not have an ejectment in the same court against the plaintiff till thofe cofts are paid, but he may proceed in another court; and the reafon is, because the court will have obedience paid to their rules; but another court cannot take cognizance of the rules of a diftinct court. Sid. 279.

Stra. 1152.

8 Mod. 225. Stra. 548. 554. 681. 2

But where H. brought an ejectment in C. B. and at the affizes was nonfuited, and cofts were taxed on the nonfuit, and then he brought a new ejectment in C. B. and upon a rule being there made to ftay proceedings till the cofts of the first nonfuit were paid, he brought an ejectment in B. R. that court ftayed proceedings there alfo, upon producing the rule of the court of C. B. and made a like rule there. 2 Barnes 107.

No new ejectment fhall be brought by the defendant after recovery against him, till he has quitted the poffeffion, or the tenants have attorned to the plaintiff; fo that he be in poffeffion and the defendant not. Salk. 258. pl. 12.

The

Of bringing a new or fecond Ejectment.

The court would not flay proceedings in one ejectment till the event of another was determined. Barn. K. B. 47. But proceedings in a fecond ejectment were stayed till the fpecial verdict in the former was determined. And. 298. 2 Stra. 1105.

B

Of recovering the mefne Profits.

EFORE the time of Hen. 7. plaintiffs in ejectment did not recover the term; but until about that time the mefne profits accruing to the ejector were the measure of the damages given the ejected. So that by the old law and practice in ejectment, the plaintiff recovered nothing but damages, no term was recovered; but when it became eftablished that the term fhould be recovered, the ejectment was put into the form of a real action; the proceeding was in rem. and the thing itself; the term only then was recovered, and nominal damages, but not the mesne profits; whereupon a mode of recovering the mefne profits [after the ejectment had been tried, and the plaintiff had recovered poffeffion] in an action of trefpafs was introduced, and grafted upon the prefent fiction in ejectment; and the action of trefpafs for the mejne profits is put in the place of the ejectment at common law, which was a true, and not a fictitious action, and nothing more than an action of trefpafs. Vide 3 Wilf. 120. and Aflin v. Parker, Burr. 4 pt. 688.

Actions for mefne profits tend to create double expence; the plaintiff fhould be ready at the trial of ejectment to prove his damages. Barnes 87.

It was fettled by all the judges in Aflin v. Parker, 32 Geo. 2. on a case reserved, that in trespass against the tenant in poffeffion for mefne profits, either by the leffor or the nominal plaintiff, after a recovery in ejectment, the plaintiff need not prove a title; but it is fufficient to produce the judg ment in ejectment, and the writ of poffeffion executed, and to prove the value of the profits, and thereupon he shall recover from the time of the demife laid in the declaration. Burr. 4 pt. 688, Barnes 472.

Where the judgment was against the cafual ejector, and no rule entered into, the leffor cannot maintain trespass for the mefne profits without an actual entry-but aliter where the judgment is against the tenant in poffeffion; and he entered into a rule, for then he is eftopped. O. Stra. 5.

In case the plaintiff can prove his title accrued before the time of the demife, and prove the defendant to have been in poffeffion, he fhall recover antecedent profits; but then the defendant may controvert the title, which he cannot if the plaintiff goes for no longer time than is contained in the demife. Decofta and Atkins, per Eyre, ch. juft. Hil. 4 Geo. 2. Bull. Ni. Pri. 87.

But

Of recovering the mefne Profits."

But note: Should the plaintiff in an action of trefpafs for mefne profits go back for damages till the time his title accrued, and the defendant have been in poffeffion, he may protect himself by the ftatute of limitations, from all da mages, but for the laft fix years. Bull. Ni. Pri. 88.

If the action be brought, after judgment by default, against the cafual ejector, it is ufual for the plaintiff to recover the cofts of the ejectment, as well as the mesne profits. Bull. Ni. Pri. 88.

And in case the action be brought by the nominal plaintiff in ejectment, the court on application will ftay the proceedings therein till fecurity is given for the cofts. Agreed. Ibid.

If one tenant in common recovers in ejectment against another, he may have trespass for the mefne profits. 3 Will.

118.

The defendant cannot pay money into court in an action for mefne profits after recovery in ejectment. 2. Wilf. 115.