in the declaration, to go into evidence of the mesne profits thereof, which shall or might have accrued from the day of the expiration or determination of the tenant's interest in the same, down to the time of the verdict given in the cause, or to some preceding day to be specially mentioned therein: and the jury, on the trial, finding for the plaintiff, shall, in such case, give their verdict upon the whole matter, both as to the recovery of the whole or any part of the premises, and also as to the amount of the damages to be paid for such mesne profits: provided that nothing hereinbefore contained shall be construed to bar any such landlord from bringing an action of trespass for the mesne profits, which shall accrue from the verdict, or the day so specified therein, down to the day of delivery of possession of the premises recovered in the ejectment."

Evidence. The evidence necessary to support this action, (after judgment, upon a verdict of 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 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

:

(50) "Where the judgment is had against the tenant in possession, 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 Will. III. 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.

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 property antecedent to the day of the demise, or brings his action against a precedent occupier (h) (51). But in order to render the judgment by default conclusive evidence of the title, it must be pleaded as an estoppel (i); for a judgment is in no case conclusive unless pleaded by way of estoppel (k). 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 (1), which are uncertain, the bankruptcy of the defendant cannot be pleaded in bar; and on the same principle, a plea of discharge under an insolvent debtors act is no bar (m). A judgment, recovered in ejectment against the wife (n), cannot be given in evidence in an action against the husband and wife, for the mesne profits; because the husband was no party to that suit. So a recovery in ejectment against a former tenant in possession is not (o) producible in evidence, against a person who is afterwards found in possession, without proving that he came in under the defendant in ejectment, so as to make him a privy to the judgment in ejectment; the rule of law being, that judgments bind only parties and privies, and as to strangers are considered as res inter alios actæ and consequently not producible against them. If there be two counts, and the defendant pleads to the first, Not Guilty, and on the last suffers judgment by default, the defendant will be ⚫ entitled to a verdict on the first count, if plaintiff cannot prove that defendant had committed another and a different act of trespass from that confessed by the defendant. Trespass for mesne profits. The declaration contained two counts; the first of which stated the entry and expulsion on the 25th of March, 1794; and the last stated the entry and expulsion on the 3rd of June, 1797. To the first count the defendant pleaded, Not Guilty, and on the last he suffered judgment to go by default. The venire was awarded as well to try the issue joined on the first count as to assess damages on the last. At the trial the plaintiff proved one act of trespass

(h) Decosta v. Atkins, Bull. N. P. 87. (i) Doe v. Huddart, 2 Cr. M. & R.

316.

(k) Per Parke, B., Doe v. Seaton, 2 Cr. M. & R. 732, and ante, p. 746.

(1) Goodtitle v. North, Doug. 583. (m) Lloyd v. Peell, 3 B. & A. 407. (n) Denn v. White and Wife, 7 T. R. 112.

(0) Doe v. Harvey, 8 Bingh. 242.

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

only, which was covered by the last count: it was holden (p), that a verdict should be entered up for the defendant on the first, and damages assessed on the last. The plaintiff brought ejectment in C. B., judgment was given for defendant; that judgment was afterwards reversed on error in B. R. The plaintiff afterwards brought trespass for mesne profits in B. R., and claimed to recover, by way of damages, the costs in error. It was holden (q), that he was entitled to recover those costs as part of the damage sustained, and that the jury might consider the costs between attorney and client as the measure of the damage.

On the subject of costs see stat. 3 & 4 Vict. c. 24, ante, p. 37 (52).

(p) Compere v. Hicks, 7 T. R. 727.

(g) Nowell v. Roake, 7 B. & C. 404.

(52) As to cases wherein verdicts have been returned before the passing of this act, see stat. 4 & 5 Vict. c. 28.

CHAPTER XIX.

EXECUTORS AND ADMINISTRATORS.

I. Of Bona Notabilia, p. 769.

II. Of the Nature of the Interest of an Executor or Administrator in the Estate of the Deceased, p. 774; in what Cases it is transmissible, p. 777; and where an Administration de bonis non is necessary, p. 778.

III. Of limited or temporary Administrations, p. 779.
IV. Of an Executor de son Tort, p. 781.

V. Of the Disposition of the Estate of the Deceased, and of the Order in which such Disposition ought to be made, p. 784.

VI. Of Admission of Assets, p. 788.

VII. Of Actions by Executors and Administrators, p. 791.
VIII. Of Actions against Executors and Administrators, p. 796.
IX. Of the Pleadings, p. 801; and herein of the Right of
Retainer, p. 805; Evidence, p. 806; Judgment, p. 808;
Costs, p. 808.

I. Of Bona Notabilia.

BY the 92nd canon (1), "If a testator or intestate dies in one diocese, and has, at the time of his death, goods or good debts to

(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. And on this ground it was holden, in Middleton v. Croft, Str. 1056, that the canons of 1603 did not proprio vigore bind the laity. "I say proprio vigore, by their own force and authority; for there are many provisions contained in these canons, which are declaratory of the ancient usage and law of the Church of England

the value of £5, in any other diocese or peculiar jurisdiction, within the same province, the probate of the will, or granting letters of administration, belongs to the Prerogative Court of the archbishop of that province; and every probate or administration not so granted, is declared void; with this proviso, that if any man die in itinere, the goods he has about him at the time shall not cause his will or administration to be liable to the Prerogative Court."

The principle appears to be, that the goods of a party who dies in itinere, are supposed to be, for the purposes of the jurisdiction of the ordinary, in the place where he is domiciled, notwithstanding his personal absence. A person whose domicile and property were in the diocese of Gloucester, was proceeding on temporary business to Bristol, and met with an accident, in consequence of which he was taken to the Bristol Infirmary, which is in the diocese of Bristol, and within a few days after died. Probate of his will having been granted by the Bishop of Gloucester, it was holden regular; for the testator had died in itinere. Doe d. Allen v. Ovens, 2 B. & Ad. 423.

By the 93rd canon, "goods in different dioceses, unless of the value of £5, shall not be accounted bona notabilia” (2); with this proviso, "that this shall not prejudice those dioceses, where, by custom or composition, bona notabilia are rated at a greater sum." Where there are bona notabilia (a) in one diocese of Canterbury and one of York, the bishop of each diocese must grant an administration. Where in two dioceses of Canterbury (b), and two of York, there must be two prerogative administrations. It appears from the 92nd canon, before stated, that if an ordinary of a diocese commits administration, when the party has bona notabilia in different dioceses within the same province (c), such administration is merely void; and it was so decided according to Moor, 145, in 19 Eliz. (3).

(a) Burston v. Ridley, Salk. 39. (b) Per Cur. ib.

(c) See Stokes v. Bate, 5 B. & C. 491, and post, 773.

received and allowed here, which in that respect and by virtue of such ancient allowance will bind the laity, but that is an obligation antecedent to, and not arising from, this body of canons;" per Lord Hardwicke, delivering judgment. See judgment, very fully reported, and probably from a MS. of the Chief Justice, Lord Hardwicke, 2 Atk. 653.

(2) "It seems that this canon has changed the law, if that were otherwise before, inasmuch as the granting administration belongs to the ecclesiastical law, and our law only takes notice of their law in this; and therefore they may alter it at their pleasure." 1 Rolle's Abr. 909, Executors, (1) pl. 5. But see the preceding note.

(3) The name of the case is not mentioned in Moor; but there is a case in 2 Leon. 155, by the name of Dunne's case, of this year, and on this