"having been once distinctly put in issue by them, or by those to "whom they are privy in either estate or law, has been, on such “issue joined, solemnly found against them." In the present case, therefore, if the recovery in the former ejectment was not founded upon the matter which is controverted in the present action, there is no estoppel which can conclude the plaintiff either in pleading or in evidence. But it appears to me, that, if the parties are to be considered the same, and if the judgment against the casual ejector in the ejectment is to have the same effect against a party served, as a judgment against him upon his plea of not guilty, there was an adjudication of which the defendant might have availed himself, and which he ought to have pleaded, if he meant to rely on it as a conclusive bar to the plaintiff's assertion of title to the lands. The plaintiff in this action complains of an entry upon, and an expulsion from, his (the plaintiff's) land, and a taking of the profits of it by the defendant. The defendant's feigned lessee in the ejectment claimed that same land as the land of the present defendant, which he had title to demise to the feigned lessee. The question of title was the question in controversy in the ejectment. It is true, that the record in the action of ejectment does not state, in terms, that the lessor of the plaintiff has title. But we must construe the pleadings in ejectment not merely by the statements which the record contains, but by the condition under which the defendant becomes a party on the record. For a period of two centuries the consent rule in England has, in express terms, bound the defendant to plead the general issue, and to rely on title only. A similar obligation is, by the settled practice of the Courts in this country, imposed and undertaken by the mere fact of taking defence to the ejectment. The recovery, therefore, of the same lands, upon the allegation made by the present defendant, when he brought his ejectment at the suit of his feigned lessee, that those lands were the lands of the defendant, involved a direct adjudication that they were not the lands of the present plaintiff, or of any other person. If it furnished a defence at all, it did so by means of that adjudication; and if that be so, the omission to plead it, and the issue in the present action upon the allegation of fact that E. T. 1848. NOWLAN V. GIBSON. NOWLAN V. E. T. 1848. the lands were the plaintiff's lands, left the case at large for the Exch.of Pleas. jury. The question then being open, whether, according to the true state of the title, the plaintiff had a possessory right to the lands, and the evidence having clearly established that right, the plaintiff was entitled to a verdict; unless a defence could be made, founded on the writ of habere. GIBSON. I may add here, in reference to one portion of the argument, that the question which I have been discussing can never arise in a cross ejectment. The consent rule in England, and the act of taking defence in the Courts in this country, bind the defendant, as I have stated, not only to plead the general issue, but to rely on title only at the trial. That in the present case the judgment was properly admitted in evidence, though a judgment against the casual ejector (the present plaintiff having been served with the ejectment), has not, I think, been much disputed at the Bar. In Doe v. Seaton (a) a similar judgment was held admissible in evidence, on the ground expressly that, although not formally, it was substantially between the same parties. Secondly, as to the writ of habere and the possession taken under it. A question might have arisen whether the defendant, having entered by legal process-namely, a writ of habere, executed by the Sheriff, and sued out upon a regular judgment, could be treated as a trespasser for that entry. I have not found a direct authority applied to a possession acquired under a writ of habere founded on a judgment in ejectment. It might be contended with great force, that all the authorities and precedents in pleading, according to which a defendant in trespass has been held entitled to resist the action by showing that he acted under the sanction of the process of the law, would apply to the entry of the present defendant. If this defence had been pleaded, the plaintiff might have relied in his replication (as at the trial he relied in evidence) on the writ of restitution, and might have contended (whether rightly or wrongly it is unnecessary now to decide) that, in effect, although not in form, the issuing of that writ was a determination by the Court that the habere was a nullity, or that it was to be treated as set aside; or he (a) 2 Cr. M. & Ros. 278; S. C. 1 Tyr. & Gr. 19. might have shown the order of the 27th of June 1847, and have contended (whether successfully or not it is unnecessary to determine) that so far as that order professed to set aside the judgment and subsequent proceedings, it was absolute; and that the condition, which it contained, of payment of costs, was precedent only to the allowing the defence to stand, and the issuing of the writ of restitution. There is very recent authority for holding that an order of the Court, setting aside a writ, although the order is not shown to have been acted on, operates to deprive the party acting under the writ of its protection. In Jones v. Williams (a) the defendant, to a declaration in trespass quare clausum fregit, justified under a writ of fieri facias, in an action in which he was plaintiff and the plaintiff Jones was defendant. The plaintiff replied, an order of the Court setting aside the writ, but did not show that the order had been ever acted on. The defendant rejoined, that the plaintiff had ruled the Sheriff to return the writ, and that it was filed of record; and relied on the writ so filed as an estoppel precluding the plaintiff from alleging that the writ was not valid. The plaintiff demurred to this rejoinder; and the Court held that the rejoinder was bad and the replication good; ruling that the order, setting aside the writ, prevented it from being any longer a justification to the defendant (the plaintiff in the writ), although it would be a justification to the Sheriff, and to all persons acting under him. Whether a similar answer could have been given in this case to a defence founded on the writ of habere, or whether the writ unanswered would have furnished a defence to the action, are questions on which, in my view of the case, we are not called upon to decide. The defendant was precluded from relying on any such defence under the general issue. Nothing can be better settled than the familiar rule (for which I need hardly refer to 1 Saunders, p. 298), that in trespass, an authority in law founded on legal process, criminal or civil, must be specially pleaded. The case then stands thus :-The plaintiff proved clearly a title in himself to the lands subsisting when the defendant entered. The defendant has neither concluded the plaintiff from relying on that (a) 8 M. & Wels. 349. E. T. 1848. NOWLAN v. GIBSON. NOWLAN v. GIBSON. E. T. 1848. title by pleading the judgment as an estoppel, nor availed himself of Exch. of Pleas. the protection of the writ of habere by pleading it specially in bar; and the result, in my judgment, is, that the plaintiff was entitled to a verdict. By the course adopted at the trial, we are enabled to give him that benefit without any further proceeding, the damages having been assessed by the jury; and a verdict ought now to be entered for the amount of the damages so assessed. I should not say more upon this case, but that I deem it necessary not to suffer some of the topics which have been pressed strongly in argument to pass without some observation. It has been urged that we cannot decide as we are about to do, without in effect ruling that in an action of trespass for mesne profits, the judgment in ejectment is not conclusive where the general issue is pleaded, and where the feigned lessee or his lessor is plaintiff, and the defendant in the ejectment, or one served with the declaration or summons, is defendant. Our decision involves no such determination. I, for one, should require more argument than I have yet heard to induce me to concur in unsettling the course of practice which has prevailed, I believe in both countries, ever since the case of Aslin v. Parker (a), and according to which the judgment in ejectment has been held, in an action for mesne rates, conclusive evidence of the title of the lessor of the plaintiff on the day of the demise in the ejectment. This practice is not inconsistent with the decision in Doe v. Huddart; for there the plea was, not the general issue, to which the estoppel could not be replied as a conclusive answer; but a special plea, to which, according to Doe v. Wright (b), the estoppel could have been replied as a conclusive answer. The case in that view does appear to be within the principle, and indeed within the very terms, of the rule laid down in Trevivian v. Lawrence, as fully explained by PENNEFATHER, B., in Armstrong v. Norton. Even if that rule did not directly apply, the practice is a convenient one, and effects what could unquestionably be accomplished by a special verdict. No doubt whatever can, I apprehend, exist, that the jury may find specially, and include in their finding the matter of the estoppel; and that if they do so find, the Court may (a) 2 Burr. 665. (b) 2 Per. & D. 672; S. C. 10 Ad. & E. 763. NOWLAN v. GIBSON. and ought to decide, in point of law, by giving force to the estoppel. E. T. 1848. Exch. of Pleas. This was done in Rowlan's case (a); and it was done in a case, the very latest I believe in which this question of estoppel is reported to have arisen, Dimes v. The Grand Junction Canal Company (b). There a question arose before the Court of Exchequer Chamber in England, upon a writ of error from a judgment in the Court of Queen's Bench upon a special verdict; the action was trespass for mesne profits; the plea was, not guilty. The Company had purchased a copyhold tenement from the tenant, who died, leaving an infant heir; the lord of the copyhold then seized the land quousque, and brought an action of ejectment, in which he obtained judgment against the Company. He then brought this action for the mesne profits; the plaintiff gave in evidence the record of the judgment. Evidence was given showing the nature of the plaintiff's title and, among other matters, showing that proclamations for the party entitled to be admitted (which were necessary according to the custom) were made at three consecutive Courts. The first and third of those Courts were found in the verdict to be "general Courts Baron," the third was simply found to be a "Court Baron." The custom of the manor, as found, required that the proclamations should be made at "three consecutive general Courts Baron." The plaintiff's title was held to be established, save as to this defect in the finding, viz., that the Courts were not all found to be general Courts Baron. Lord Chief Justice Tindal, in delivering judgment, after stating the opinion of the Court upon all the other points of the case, disposes of the last question thus :-"The other objection was, that the proclamations were not found to be at three consecu"tive general Courts Baron. This was first settled to be necessary "in Doe v. Trueman, above referred to; and if this had been a "special verdict in ejectment, and the question was, whether the "lord's title was proved, the verdict would have been defective. "But this is an action of trespass for mesne profits, and the verdict "has found a good title by estoppel, by the judgment in ejectment. "That judgment not having been pleaded as an estoppel, the jury (a) 4 Coke's Rep. 52. (b) 25 Law Jour. Q. B 107. |