ment by churchwardens and overseers, contained two sets of counts, one describing them by their office without their names, and the other by their names without their office; it was held the objection, if any, was cured after verdict. (d) If a person be named in the declaration as one of the lessors of the plaintiff without his authority, the party served with the declaration may before appearance move the court to have such party's name struck out of the declaration.(e) When the plaintiff obtained a verdict in a court, on a supposed demise by a party without his authority, and without his concurring in the action, the court set aside the verdict.(ƒ) Ă receiver cannot proceed in ejectment.(g) Where the name of the tenant in possession was inserted at the commencement of a declaration by mistake, instead of that of the casual ejector, (the proceedings in other respects being regular,) the court granted a rule for judgment upon the common affidavit of service, and suggested that if the tenant did not appear, an application should be made to amend.(h) When a declaration was entitled, "Doe on the demise of A. and B. v. B.," and the affidavit of service was entituled, "Doe on the demise of B. and A. v. B.," the court, notwithstanding the variance between the arrangement of the lessors' names, gave judgment againt the casual ejector. (i) An attorney cannot be a lessor in ejectment. (j) The plaintiff is entitled to recover in ejectment, although the defendant in possession is the servant of another.(k) A mere servant of a beneficial occupier Servant in cannot be made defendant in an ejectment; but possession. where a servant in the visible occupation of pre (d) Doe d. Orleton v. Harpur, 2 D. & R. 708. Doe d. Shepherd v. Roe, 2 Chit. 171. (f) Doe d. Hammeck. Filles, 2 Chit. 170. (g) Wynn v. Newborough, 3 Bro. C. C. 88. And where a receiver is in possession, an ejectment cannot be brought without leave of the court. Angel v. Smith, 9 Ves. jun. 335. (h) Doe d. Cobbey v. Roe, Ad. Eject., 198; and see Chitty, 573, n. 2 Chit, 173. (i) Doe d. Worthington v. Butcher, 2 Chit. 174. (j) Reg. Gen. K. B., 2 Doug. 466, n. (k) Doe d. Cuff v. Stradling, 2 Stark. 187. Demise, entry, and ouster. mises assumes the character of tenant in possession, he is liable to be made defendant, and his conduct is evidence to go to the jury, to presume that he is tenant in possession, unless the fact is rebutted by other evidence.(1) To found a motion for judgment against the casual ejector, a declaration entitled thus, "In the common pleas, June 12, 1834," will suffice, notwithstanding the 15th rule of M. T. 3 W. IV., does not apply to actions of ejectment. (m) The court refused to set aside a declaration in ejectment, in which the notice was dated on a day after the service of the declaration.(n) The same precision and exactness is not necessary in a declaration in ejectment as in a precipe.(o) In ejectment on the demise of an heir by descent, the demise was laid on the day his ancestor died, and held well enough after verdict.(p) Where the lessors of the plaintiff are a corporation, the demise must be stated to be by deed, but it need not be proved. (9) Where an entry is necessary the demise must be laid after it.(r) An ejectment by the assignees upon a demise laid after the act of backruptcy, but before the bargain and sale, was adjudged ill.(s) Actual ouster does not mean putting out by force of hand proved in evidence; but holding over by such possession as must have been adverse to the tenancy, is full presumptive evidence of actual ouster.(1) (1) Doe d. James v. Staunton, 1 Chitt. 119. 2 B. & A. 371. S. P. Gulliver v. Swift, 2 Ld. Ken. 511. (m) Doe d. Ashman v. Roe, I Scott, 166. 1 Bing. N. R. 253. A declaration in ejectment entitled by mistake of T. T., 6 W. IV., instead of 5 W. IV., dated August 1, 1835, was held sufficient to warrant a rule for judgment against the casual ejector-Doe d. Smithers v. Roe, 4 Dowl. P. C. (n) Doe d. Evans v. Roe, Adol. & Ellis, 11. The rule of court, M. T., 3 W. IV., that every declaration shall be entitled of the day of the month and year in which it is filed and delivered, does not apply to declarations in ejectment.-Id. (0) Connor v. West, 5 Burr. 2672. (p) Roe d. Wrangham v. Hersey, 1 Wils. 274. (4) Furley d. Canterbury (Mayor) v. Wood, 1 Esp. 199. (r) Doe d. Compere v. Hicks, 7 T. R. 433, 727. But where the plaintiff's lessor entered, and afterwards levied a fine, and then an eject ment was brought, and the demise laid before the fine, it was held well (s) Doe d. Esdaile v. Mitchell, 2 M. & S. 446. 2 Rose, 265. The damages in ejectment (except between land- Damages. lord and tenant) is nominal; the remedy therefore is for the recovery of the loss of possession termed mesne profits, (u) is by action at law, in which action the plaintiff complains of his ejectment and loss of possession; states the time during which the defendant (the real tenant) held the lands and took the rents and profits, and prays judgment for the damages which he has thereby sustained. (v) A mesne pro This action may be brought by way of trespass Trespass for for mesne profits, (including the costs of the eject- fits. ment,) in the name of the lessee against the tenant in possession, after judgment by default. (w) joint action for mesne profits may be supported by several lessors of a plaintiff in ejectment after a recovery therein, although there were only separate demises by each. (a) An action for mesne profits lies when one tenant in common recovers against another in ejectment by default.(y) No action for mesne profits lies against an executor.(z) Where an ejectment is defended and the plaintiff (u) See Reev. E. L., 4 vol., 169. Ad. on Eject., chap. 15. (v) This action is partly superseded when the relation of landlord and Mesne protenant has subsisted between the parties to the ejectment; but the provi- fits between sions of the statute 1 G. IV., c. 87, (see p. 368,) which enables landlords to landlord and recover in that action the mesne profits accruing from the day of the de- tenant. termination of the tenancy, (without reference to the day of the demise in the declaration,) to the day of the trial, or some preceding day. But this mode of recovering the mesne profits is optional with the landlord; and as an action for mesne profits must notwithstanding be resorted to for the recovery of those profits, from the day of the trial, or other preceding day, to the day of obtaining possession; and as it is often difficult for the landlord to ascertain what injury he has actually sustained by the holding over of the tenant, (the amount of the damages not being limited to the amount of the rent,) until he obtains actual possession, this provision of the statute is, in practice, seldom resorted to. (w) Aslin v. Parkin, 2 Burr. 665. S. P. Gulliver v. Drinkwater, 2 T. R. 261; and see 1 Esp. 358. For, where the judgment in ejectment is against the defendant by default, costs cannot be recovered on the judgment, because the defendant is only nominal; but an action will lie for mesne profits, and the costs of the ejectment.- See Lofft, 451; and see Doe d. Compeer v. Hicks, 7 T. R. 433. But the costs of an ejectment may be recovered in an action for mesne profits, where the defendant has appeared and pleaded to the ejectment, but afterwards withdrawn the plea, and judgment was signed, although no costs have been taxed.-Symonds v. Page, 1 C. & I. 29. (r) Chamier v. Llingen, 2 Chit. 410. Semble, that a tenant, whose under-tenant retains the possession after the term, is not liable for mesne profits.-Burne v. Richardson, 4 Taunt. 720. (y) Goodtitle v. Tombs, 3 Wils. 168. obtains a verdict, he cannot in the execution of a writ of inquiry to assess damages in an action for mesne profits, give in evidence the extra costs beyond his taxed costs, in order to increase the damages; but after judgment by default in ejectment, the costs of such judgment may be recovered as well as the mesne profits. (a) In trespass for mesne profits after ejectment for the recovery of a house used as an inn, the plaintiff may recover the costs of the reversal in error of a judgment in ejectment for the defendant, as between attorney and client. (b) In trespass for mesne profits after ejectment for the recovery of a house used as an inn, the plaintiff cannot recover the loss which he has sustained by the defendant shutting up the inn and destroying the custom, unless such damage be specially stated in the declaration. (c) In trespass for mesne profits by the lessor of the plaintiff after recovery in ejectment, it is no answer to the action that a remittur damna has been entered on the record in the action of ejectment.(d) To entitle a party to maintain trespass for the mesne profits, it is not necessary to execute an habere, if the plaintiff has been let into possession by the defendant. (e) In the action for mesne profits, the plaintiff is entitled to receive only the taxed costs of the ejectment, and not the extra costs. (ƒ) Where there is a judgment by default in an ejectment, the plaintiff may, in the action for mesne profits, recover all the expenses he has been necessarily put to in the ejectment, and is not limited to the taxed costs, as between party and party.(g) (a) Brocke v. Bridges, 7 Moor. 471. (b) Nowell v Roake, 1 M. & R. 170. 7 B. & G. 404. Calvart v. Horsefall, 4 Esp. 167. (f) Doe v. Hare, 2 Dowl. P. C. 245. 2 C. & M. 145. 4 Tyr. 29. Where A. took possession of premises on the 2nd of June, and a sum of money became due for ground rent on the 24th, for the quarter ending on that day, which A. paid; held, in an action for mesne profits against A., that he was entitled to deduct the money so paid from the damages.-Id. (9) Doe d. Huddart, 2 C. M. & R. 316. 4 Dowl. P. C. 437. 1 Gale, 260. A judgment in ejectment is not conclusive evidence of title in the When an action of trespass for mesne profits is brought against a party who has a cross claim against the plaintiff at law for money expended on land, the court will grant an injunction to restrain the proceedings at law, there being no right of set-off in such an action.(h) action for mesne profits, unless it be pleaded by way of estoppel; therefore, under a plea (to a declaration in the ordinary form) that the premises in the declaration mentioned were not the premises of the plaintiff; it was held that the defendant might give evidence of title in himself, though he had let judgment go by default in the ejectment.-Id. To a declaration in trespass by John Doe as plaintiff, the defendant pleaded that the premises were not the premises of the plaintiff; it was held that under this plea the defendant was at liberty to prove title in himself, the judgment in ejectment not being conclusive against the defendant, unless shown upon record.-Id. (h) Cawdor (Earl) v. Lewis, 1 Y. & Col. 427. |