Of costs. Stat. 22 and 23 C. 2. Costs on new assignment. Where the de fendant suffers judgment by default on new assignment. Where the de fendant suffers judgment by assignment, but the plea of justification be found for the defendant, yet the plaintiff is entitled to his costs under the rule, that where the plaintiff's demand is altogether denied by the defendant's pleas, and at the trial the plaintiff obtains a verdict for part of his demand, and the defendant obtains a verdict as to other part, the plaintiff is entitled to the general costs, deducting the costs on those parts in which he fails, but not allowing the defendant his costs thereon. (a) In the above cases it will be observed, that the defendant pleaded to the new assignment, and the plaintiff was therefore compelled to go down to trial on such issue. But, where the defendant, instead of pleading to the new assignment, suffers judgment to go by default, and the plaintiff proceeds to trial on the special plea of justification, which is found against him; in this case, although he will be entitled to his costs on the judgment by default, yet the defendant will be allowed the general costs, and the reason of this is, that it was the plaintiff's own fault in going down to trial, for he might have entered a nol. pros. as to the plea of justification, and have assessed his damages on the new assignment before the sheriff. (b) These cases come within the rule, that where the defendant suffers judgment by default as to part of the plaintiff's demand, and pleads only as to other part, and the plaintiff takes issue on the pleas, and at the trial all the issues are found for the defendant, there the defendant is entitled to the costs of the issues found for him, and the plaintiff is entitled only to the costs of the judgment by default. (c) In the last mentioned cases the plaintiff was not compelled to go down to trial, and having done so unnecessarily, was held not entitled to the general costs; but, when a general plea of not default on new guilty is left upon the record, the plaintiff is still compelled to go down to trial, although the defendant has suffered judgment by default upon the new assignment, and, in that case, though the issues on the justifications should be found for the defendant, yet the plaintiff will be entitled to the general costs of the cause, for he has not gone down to trial unnecessarily, as in the cases mentioned in the preceding paragraph. Thus, where the de leaves a general plea of not guilty on the record. guilty to the new assignment. The (a) House v. Thames' Commissioners, (b) Thornton v. Williamson, 13 East, 191. Harber v. Rand, 9 Price, 336; in which case he would be entitled to full costs, though the damages be under 40s. B. N. P. 329. (c) House v. Thames' Commissioners, 3 Brod. and Bing. 119. Of costs. Stat. 12 and 23 C. 2. signment. fendant pleaded not guilty, and a plea of licence, and the plaintiff took issue on the plea of not guilty, traversed the licence, and also new assigned, and the defendant took issue on the traverse of the licence, and let judgment go by default on the new assignment, and the jury found for the plaintiff on the Costs on new asgeneral issue, without any damages thereon, for the defendant on the plea of licence, and assessed one shilling damages, and one shilling costs for the plaintiff on the new assignment, the court held, that the plaintiff was entitled to the general costs, for the defendant, by pleading the general issue to the whole declaration, made it necessary for the plaintiff, in order to get rid of that plea, which would otherwise have barred his whole action, to go to trial at the assises, since he could not by any other means have obtained damages or costs on the judgment by default. (a) W.3. By statute 8 and 9 W. 3, c. 11, s. 4, for the preventing of Stat. 8 and 9 wilful and malicious trespasses, it is enacted, "that in all actions of trespass, to be commenced or prosecuted in any of His Majesty's courts of record at Westminster, wherein at the trial of the cause it shall appear and be certified by the judge, under his hand, upon the back of the record, that the trespass upon which any defendant shall be found guilty was wilful and malicious, the plaintiff shall recover not only his damages, but his full costs of suit, any former law to the contrary notwithstanding." The certificate on this act need not be granted at the trial of the cause. (b) It has been usual for the judge to consider himself bound to certify that the trespass was wilful and malicious, if it appear at the trial that the trespass, however trifling, was committed after notice, and the jury give less than forty shillings damages. (c) The granting of a certificate, however, upon this statute, seems to be discretionary in the judge before whom the trial is had; he may certify, or not, according as it appears to him under the circumstances proved, that the trespass was wilful and malicious. Thus, where the judge declined to certify in a case in which notice was given by the wife of the plaintiff to the defendant not to enter the locus in quo in his cart, there being no (a) House v. Commissioners of the Thames, 3 Br. and Bing. 117; and see Longden v. Bourne, 1 B. and C. 278. 1 Saund. 300, a. new notes. (b) Woolley v. Whitby, 2 Baro. and Cres. 580. (c) Reynold v. Edwards, 6 T. R. 11. Harper v. Carr, 7 T. R. 449. Of costs. Stat. 8 and 9 W.3. Stat. 4 and 5 road there, notwithstanding which the defendant persisted in going on, for the purpose of viewing more conveniently the turning in of some cattle, in assertion of a disputed right of common in an adjoining inclosure of the plaintiff's, which right was found for the defendant on a justification pleaded, the court refused to interfere. (a) By the statute 4 and 5 W. and M. c. 23, s. 10, reciting that W. and M. great mischiefs ensue by inferior tradesmen, apprentices, and other dissolute persons neglecting their trades and employments, who follow hunting, fishing, and other game, to the ruin of themselves and damage of their neighbours, it is enacted, that “if any such person shall presume to hunt, hawk, fish, or fowl, unless in company with the master of such apprentice duly qualified by law, such person shall be subject to the penalties of this act, and shall or may be sued or prosecuted for his wilful trespass in such his coming on any person's land; and if found guilty thereof, the plaintiff shall not only recover his damages thereby sustained, but his full costs of suit, any former law to the contrary, notwithstanding." Upon this statute it has been held, that a clothier and alehouse-keeper is an inferior tradesman (b), but the court of King's Bench was equally divided on the question, whether a surgeon and apothecary not qualified, was within the act. (c) It has been laid down, that every tradesman not qualified is an inferior tradesman within the act. (d) In trespass, where the plaintiff declared, “for that the defendant being a dissolute person, neglecting his employment, and following hunting and other game, and by no means qualified by law so to do," broke and entered the plaintiff's closes, and the plaintiff proved the trespass, but not that the defendant was a dissolute person, &c. within the act, it was held, that no more costs than damages could be given, the latter being under 40s. (e) (a) Good v. Watkins, 3 East, 495; but see R. v. Inhabitants of Chadderton, 5 T. R. 273. (b) Wickam v. Walker, Barnes, 125. 1 Ld. Raym. 149. Com. Rep. 26. (c) Buxton v. Mingay, 2 Wils. 70. (d) Per Holt, C. J. Wickham v. Walker, Barnes, 125; but see Buxton v. Mingay, ubi sup. (e) Pallant v. Roll, 2 W. Bl. 900. Trespass for Mesne Profits. WHEN the owner of land has been ousted, we have seen (a) that an action of trespass may be maintained, after his re-entry, and that in such action he will be entitled to recover for all the trespasses committed from the time of the ouster, since by the reentry his possession is revested ab initio. This principle is the foundation of the action of trespass for mesne profits. A recovery and execution in ejectment being in fact the same thing as an entry, the plaintiff is considered in law to have been in the actual possession of the estate from the day of the demise laid in the declaration, and may maintain an action of trespass against the defendant as a wrong doer, and trespasser upon his estate from that day. (b) By statute 1 Geo. 4, c. 87, s. 2, in cases of ejectment between landlord and tenant, the plaintiff may, at the trial, go into evidence of the mesne profits, and the jury shall find the amount of the damages to be paid for such mesne profits, down to the time of verdict. (c) This action may be brought either in the name of the lessor of By whom. the plaintiff, or, whenever the record in ejectment is evidence of the title, of the nominal plaintiff in ejectment, (d) but, where that is not the case, as where the action is brought against a precedent occupier, or for the profits anterior to the demise laid in the declaration, it must be brought in the name of the lessor of the plaintiff, who will be compelled to give evidence of his title. (e) If the action is brought by the nominal plaintiff, the court will, upon application, stay the suit till security is given for answering the costs. (f) The action may be brought in the name of the nominal plaintiff after a judgment in ejectment by default, as well (a) Ante, p. 663. (b) 1 Saund. 277, a. notes, 5th ed. (c) Ante, p. 598. (d) Where the nominal plaintiff has recovered in this action he may sue the sheriff for an escape. Doe v. Jones, 2 (e) Bull. N. P. 87. Against whom. What may be recovered. as after verdict, the right of the plaintiff being in the one case tried and determined, and in the other confessed. (a) A tenant in common, who has recovered in ejectment against his cotenant, may maintain this action for the mesne profits. (b) The action may be brought either against the person who was the defendant in the ejectment, or who was tenant in possession at the time of the ejectment brought (c), or against a former occupier. (d) Any person found in possession after a recovery in ejectment, is liable to an action, and it is no defence to say that he was upon the premises as the agent, and under the licence of the defendant in ejectment, for no one can licence another to do an illegal act. But the measure of the damages in such case will not be the whole mesne profits of the lands, but will depend upon the time such person has had them in his occupation, together with the other circumstances of the case. (e) An action of trespass for mesne profits cannot be maintained against executors or administrators, for profits accruing in the lifetime of their testator or intestate. (f) The plaintiff in this action may recover not only the actual mesne profits, but also damages for his trouble, &c. (g); though where he has entered to avoid a fine, he will not be entitled to recover the mesne profits anterior to such entry, for the doctrine of relation is held not to extend to such case. (h) Where in an action of ejectment judgment has been obtained by default against the casual ejector, the costs of such action may be recovered in trespass for the mesne profits, which, as already stated, is the only means of recovering such costs (i); and the taxed costs, but not any extra costs, may also be recovered in this action where the ejectment has been defended (k), though it is more usual to proceed for these costs by fi. fa. or attachment. (1) Where, |