infant, and others, v. Sherwin and others, D. P. 17th January, 1709', reversing the decree of Lord Chancellor Cowper. N. Lord Cowper and Lord Sommers were present in the House of Lords when this decree was reversed.

After this reversal of Lord Cowper's decree, it was usual to grant perpetual injunctions under the like circumstances, as was said by Baron Price, in the case of Barefoot v. Fry, in the Court of Exchequer. The case of Barefoot v. Fryz was determined by Eyre, C. B. and Price, Page, and Gilbert, barons, on the 20th of February, 1723, in Serjeant's Inn Hall, on a bill filed for a perpetual injunction to restrain defendant, Fry, from any further proceeding in ejectment, and to quiet plaintiff in his possession. The defendant, having brought five ejectments, had been nonsuited upon full evidence in three, and verdicts found for the lessor of the plaintiff in the other two. A perpetual injunction was granted, although it was said by Mr. Ward (defendant's counsel), that courts of equity did not decree perpetual injunctions upon ejectments, and only upon an issue directed. Eyre, C. B. observed, that real actions could not be brought twice for the same thing, but now ejectments having been introduced in the place of real actions, a party might bring as many ejectments as he should think fit; and this was a reason, why courts of equity should settle and quiet the rights of parties.

In Harwood v. Rolph, after three verdicts in ejectment, another ejectment was brought, in 1772, upon which a special verdict was found and argued in C. B. in Easter and Trinity Terms, 1773; and in Hil. T. 1774, judgment was given for the lessor of the plaintiff (3 Wils. 497. 2 Bl. 937. S. C.) and upon error brought in the Court of King's Bench, the cause was argued there in Trinity and Michaelmas term, 1774, and the judgment of the court of C. B. was reversed (see Cowp. 87.); whereupon the lessors of the plaintiff brought a writ of error in parliament, and on the 9th May, 1775, the judgment of the court of B. R. was affirmed. Upon a bill filed in the Court of Chancery, a motion was made for a perpetual injunction, to restrain defendants from any further proceeding in ejectment, which was finally heard before Ld. Bathurst, Ch. assisted by Sir Thomas Sewell, M. R. on the 13th June, 1776, when an order was made for a perpetual injunction.

y This case was recognized in Leighton v. Do. M. 7 G.Str. 404. affirmed

217. Journals H. of Lords, vol 21. fo.

455.

D. P. 3d March, 1720. 2 Bro. P. C. z Bunb. 159 pl. 228.

XV. Of the Action of Trespass for Mesne Profits.

ALTHOUGH the judgment in ejectment is for the recovery of damages, as well as of the term, yet, from the nature of the declaration in that action, such damages are necessarily confined to a compensation for the injury sustained by the ejectment, which being fictitious, the damages must of course be nominal. For the real injury sustained by the plaintiff, viz. the perception of the mesne profits by the tenant in possession, the law has provided another remedy, namely, by an action of trespass, vi et armis, which may be brought by the lessor of the plaintiff in ejectment, either in his own name, or in the name of the fictitious lessee (49) against the person in actual possession and trespassing; and in which 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 in ejectment by default against the casual ejector. This action is local in its nature, and must be brought in the county where the lands lic.

It was formerly doubted, whether an action for mesne profits could be brought, in the name of the fictitious lessee" or nominal plaintiff in ejectment, after a judgment by default against the casual ejector: but in the case of Aslin v. Parkin, 2 Burr. 665. Barnes, 472. 4to edit. S. C. it was determined, that it might be so brought, as well as after a judgment upon a verdict, against the tenant in possession.

The action for mesne profits may be brought by one tenant in common, who has recovered in an action of ejectment by default, against his companion*.

Evidence. The evidence necessary to support this action (after judgment, upon a verdict in ejectment against the tenant in possession, who has appeared and confessed lease, entry, and ouster) is as follows: an examined copy of the judgment in ejectment, and of the rule of court to confess lease, entry, and ouster (50), proof of the length of time during which the defendant has occupied, and of the value

a Goodtitle v. Tombs, 3 Wils. 118.

(49) Where the action is brought in the name of the fictitious lessee, the court will, upon application, stay the proceedings, until security is given for answering the costs. Bull. N. P. 89.

(50) "Where the judgment is had against the tenant in posses

of the mesne profits, and of the costs of executing the writ of possession.

Where the judgment in ejectment has been by default against the casual ejector, and so no rule for the confession of lease, entry, and ouster, the plaintiff, in the action for mesne profits, ought to be prepared with an examined copy, not only of the judgment, but of the writ of possession also; and the return of execution thereon, and proof of the costs in the ejectment, and in executing the writ of possession: proof of the value of the mesne profits will be required in this case as in the former.

The judgment in ejectment will be conclusive evidence. against the tenant in possession of the plaintiff's title, from the day of demise laid in the declaration in ejectment; 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 profits antecedent to the day of the demise (51), or brings his action against a precedent occupier (52).

b Decosta v. Atkins, Bull. N. P. 87.

sion, and the action of trespass brought against him, it seems sufficient to produce the judgment without proving the writ of possession executed, because by entering into the rule to confess, the defendant is estopped both as to the lessor and the lessee, so that either may maintain trespass without proving an actual entry; but where the judgment is had against the casual ejector, and so no rule entered into, the lessor shall not maintain trespass without an actual entry, and therefore ought to prove the writ of possession executed." Thorp v. Fry, coram Blencowe, J. 11 W. 3. MSS. Bull. N. P. 87. Northeron v. Bowler, at Exon. Ass. Button v. Box, coram Abney, J. Oxford Summ. Ass. 1742. S. P. Notwithstanding the distinction taken in the preceding case, it may be prudent, in general, to be prepared with an examined copy of the writ of possession and return of execution. But N. 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. Per Ellenborough, C. J. in Calvert v. Horsfall, 4 Esp. N. P. C. 167.

(51) These profits are seldom the object of litigation, because the demise and ouster, in ejectment, are generally laid soon after the time when lessor's title accrued, Run. Eject. 438. N. Where an entry has been made to avoid a fine, the party so avoiding the fine cannot lay his demise in ejectment, or recover the profits that accrued, before such entry. Compere v. Hicks, 7 T. R. 727.

(52) In these cases the action should be brought in the name of the lessor of the plaintiff.

The general issue in this action is, Not guilty.

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, viz. not guilty within six years before the commencement of the suit, and thereby protect himself from all but six years.

This action being for the recovery of damages, which are uncertain, the bankruptcy of the defendant cannot be pleaded in bar.

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.

If the plaintiff recover less than forty shillings damages, and the judge does not certify that the title came in question, the plaintiff will not be entitled to any more costs than daniages.

e Goodtitle v. North, Dong. 583,
d Denn v. White and wife, 7 T. R. 112.

e Doe v. Davies, 6 T. R. 593.

CHAP. XIX.

EXECUTORS AND ADMINISTRATORS.

I. Of Bona Notabilia.

II. Of the Nature of the Interest of an Executor or Administrator in the Estate of the Deceased.

In what Cases it is transmissible; and where an Administration de bonis non is necessary. III. Of limited or temporary Administrations. IV. Of an Executor de son Tort.

V. Of the Disposition of the Estate of the Deceased; and of the Order in which such Disposition ought to be made.

VI. Of Admission of Assets.

VII. Of Actions by Executors and Administrators. VIII. Of Actions against Executors and Administrators. IX. Of the Pleadings; and herein of the Right of Retainer-Evidence-Costs-Judgment.

I. Of Bona Notabilia.

By the 92d canon, (1) "If a testator or intestate dies in one diocese, and has, at the time of his death, goods or

(1) This and the following will be found among the canons made by the clergy in a convocation, holden in the first year of the reign of King James the First, A. D. 1603. They received the royal assent, but were not confirmed by parliament. Hence it was holden in Middleton v. Crofts, Str. 1056. that the canons of 1603 did not proprio vigore bind the laity,