What cannot be taken by proteftation. the defendant had given this matter in evidence upon that iffue, viz. that the plaintiff had actually discharged him from the trust when he ceafed to be governor, this evidence muft have been received, and the verdict must have been against the plaintiff; but no fuch evidence was offered at the trial, but the defendant's counsel relied upon the nature of the confignment; fo that if we were to allow the prefent plea before the auditors, and iffue fhould be taken upon it, the confequence would be, that there must either be two verdicts the fame way, which would be nugatory; or contradictory verdicts, which would entangle the court, infomuch that they could not know how to give judgment. 8. Upon this record it appears, and ftands admitted by the defendant, that the care of the confignment was left and intrufted by him to Salomons, without the direction, confent, privity or knowledge of the plaintiff; this the plaintiff exprefly alledges, which meets the defence of the defendant in his third plea, and frights and startles him when he comes to rejoin, and make his proteftando; which is artfully done, but does not reach the confent, privity, knowledge or direction of the plaintiff; those words (I fay) frighten him: but fuppofe the proteftando had met, included and reached the very words pleaded by the plaintiff in reply; then there are two rules which exclude the faving effects of a proteftation: ft, That which is material, iffuable, and may be pleaded, cannot be taken by proteftation. Plowd. 276. Doct. Placit. 296. The ground and effect of the fuit cannot be taken by proteítation. Ibid.-The defendant is now concluded from faying, that the confent, &c. of the plaintiff is not material and iffuable; for in this plea before the auditors he relies upon it, that with the confent of the plaintiff he delivered the effects over to Salomons; and in his rejoinder he protefts, that the management of the confignment was left by him to Salomons, in purfuance of the intent and meaning of the plaintiff and his confignment, and not by agreement between the defendant and Salomons; but doth not deny in his rejoinder, that the care of the confignment was left and intrufted by him to Salomons, without the confent of the plaintiff, which he might have denied ; and therefore that averment ftanding upon the record, not anfwered or denied by the defendant, he has in effect admitted the fame to be true, and is therefore now concluded thereby. 2dly. A proteftation will not avail the party taking it, where the iffue is found against him; (except in a few fpecial cafes mentioned in Co. Lit. 126.) here the iffue is found againft the defendant. We are all of opinion, that this plea before the auditors is bad. I will now fay a few words of what we at first thought was a hardship upon the defendant; who, as governor, was, by the ufage, rules and orders of the East India Company, obliged to accept of these confignments; but we have now changed our opinion upon this head. Because, if a man accepts a confignment, he is fuppofed to know the confequences; and fuppofing the accepting the government obliges him to accept the confignments, yet he is not obliged to accept the government, and he knows the confequences of fo accepting thereof: befides here are great emoluments accruing to him by thefe confignments, 51. per cent. confulage, and other fees and profits. When a man accepts a truft, he must go through with it. When he left India, he ought to have taken care of it. He might have checked his co-factor Salomons by putting the fucceeding governor in his (the defendant's) ftead; but if he chose to repofe the whole truft and confidence in his co-bailiff, he must be anfwerable for him; and here he received the profits of the confignment. So the demurrer must be allowed, and the plea be over-ruled, and judgment must be entered for the plaintiff. We have fome doubt how the judgment must be entered, and about the damages, [See thefe cafes cited by the chief justice, to be looked into, in order to enter the judgment rightly, but he gave no particular directions how it was to be entered. 1 Leon. 302. 2 Leon. 150, 192. 1 Brownl. 25. Cro. Eliz. 84. 806. Winch. 5. Alleyn 88. Lutw. 58. After citing these cafes, the chief justice said that] This plea in truth is as much as to fay, "I will not account with you" and therefore is equal to making default, or faying nothing, nil dicit. It feems to us the judgment fhould be for the value laid in the declaration; but you will confider of this, because the plaintiff is very old, and if he dies, it is faid in fome of the books, the whole is at an end, and you must begin again; but whether this be fo, we do not determine, but proper to be expeditious; for this caufe has been depending fourteen years (though there has been no delay in this court) and it is high time it fhould be ended. I am glad to fee this action of account is revived in this [See Bac. abr. court. Judgment for the plantiff, per totam curiam, which was not entered until the next Trinity term, as appears by the record. Gwillims' 8vo. edit, i. 31 in n.] 5 Bur Rep. 2 Black. Rep. In the vacation after Eafter term, 10 Geo. Sir Joseph 3. Yates, Knight, an honeft man, a moft learned and righteous judge, was taken ill at church, on Whitsunday, June 3d 1770, and died on Thursday following (ut audivi) about four o'clock in the afternoon, at his houfe in Jockey-fields, Bedford-row, to the great lofs of the public, and of this court in particular, wherein he fat one term only. HEU! NEQUEO QUIN FLEAM. One tenant in THE common re covers against default. Trefpafs for profits lies. Goodtitle verfus Tombs. C. B. HE plaintiff Goodtitle, on the demife of his leffor, who was tenant in common of the lands in queflion, with the now defendant Tombs, recovered judgment and poffeffion in ejectejectment by ment against a casual ejector by default, and afterwards brought this action of trefpafs, for the recovery of damages fuftained, by being kept out of poffeffion by his companion Tombs from the time of the demife laid in the declaration in ejectment, until the time of the execution of the writ of poffeffion. Upon the general iffue pleaded, there was a verdict for the plaintiff, damages 15. and 40s. cofts, fubject to the opinion of the court, upon this queftion, viz. Whether one tenant in common can maintain this action against the other, to recover damages for the expulfion and mefne profits? Serjeant Glynn for the plaintiff-It was objected at the trial of this caufe, that although a tenant in common may maintain an ejectment against his companion, upon an actual oufter, yet he cannot have this action of trespass against him to recover damages, and the mefne profits; and in fupport of the objection was was cited Lit. fec. 322. and Coke's comment upon it; who fays, 44 That albeit one tenant in common takes the whole profits, the 12 Mod. 567. “other hath no remedy by law against him, for the taking of "the whole profits is no ejectment: but if he drive out of the "land any of the cattle of the other tenant in common; or do "not fuffer him to enter or occupy the land, this is an eject"ment or expuifion whereupon he may have an ejectione firma "for the one moiety, and recover damages for the entry, but "not for the mefne profits". I admit he could not recover the mefne profits in the very action of ejectment, for that is only brought to recover poffeflion, and damages for the actual trefpafs; this must be Lord Coke's meaning: the prefent action of trefpafs with a continuando for the mefne profits, is confequential upon the judgment in ejectment, whether against the cafual ejector by default, or againft the other tenant in common himself after a verdict, makes on difference; the ground of this action is the keeping the plaintiff (that is to fay, his leffor) out of poffeffion, and if he cannot recover in this action, he must be driven to seek remedy in a court of equity, which this court will prevent, if they can poffibly to.do it by law; I rely upon the cafe in 2 Burro. 668. where the whole doctrine in this matter is well reported, that this action well lies, as well at the fuit of the nominal plaintiff in ejectment, as of his leffor. Answer. Burland King's Serjeant for the defendant,-The principal question is, Whether one tenant in common can have trefpafs against another, to recover the mefne profits? I admit this is to be confidered as the action of the leffor of the nominal plaintiff, although brought in the name of the nominal plaintiff, but infift that one tenant in common cannot have trespass quare claufum fregit against the other, for their poffeffion is 2 ülk. 391. one and intire, the poffeffion of one is the poffeffion of both, fo they cannot be trefpaffers upon one another, for each of them may enter and occupy in common per my & per tout, the lands and tenements which they hold in common. Lit. fect. 322. and Co. Com. and fect. 323. Bro. Tenants in Common, pl. 14. Nota per touts les juftices, that one tenant in common fhall not have an action of trefpass against his companion. In Salk. 4. Haywood verfus Davies et al' it was agreed, that in trefpafs the defendant cannot plead in abatement that himself is tenant in common with the plaintiff, because he may give it in evidence, and that will prove him not guilty. Tenant in common cannot be a diffeifor without an actual oufter of his companion. 2 Salk. 391, 392. and in 2 Salk. 423. it is faid, a tenant in common cannot be diffeised on an undivded moiety. 2 Without Without an actual outer trefpafs will not lie, a bare taking the whole profits is not an outer; but to drive the cattle off, and not to fuffer him to enter, is an actual oufter. Tenants in common must fever in real and mixt actions, they cannot join in making a leafe in ejectment. 2 Wilfon 232. but they must join in debt for rent and in trefpafs, because they are to recover damages jointly. Two tenants in common of a tree and one cuts the whole tree; though the other cannot have an action for the tree, yet he may have an action upon the cafe for the fpecial damages by cutting, as where one tenant in common deftroys the whole flight of pigeons. 2 Ld. Raym. 737. 738.-Trover doth not lie for one against the other, becaufe the poffeffion of one is the poffeffion of both. 1 Salk. 290. -Two tenants in common of a fhip, action lies not for carrying it away; but it was held upon a fecond trial, that for destroying it the action laid. Cafes in time of Lord King, touching chattels real, fee Lit. fect. 323. By the flat. 4 Ann. cap. 16. fect. 27. Action of account may be brought and maintained by one tenant in common, his executors and administrators, against the other as bailiff, for receiving more than comes to his juft fhare or proportion, and against the executors and administrators of fuch tenant in common; this feems to be a declaration by the legislature, that before that ftatute an action of the prefent kind would not lie. Wilmot Chief justice-Before the time of Hen. 7. plaintiffs in ejectment did not recover the term; but until about that time, the mefne profits were the measure of damages. I brush out of my mind all fiction in an ejectment, the nominal plaintiff, and nominal defendant, the cafual ejector, the dramatis perfonæ or actores fabula, and confider the recovery by default, or after a verdict, as the fame thing, viz. a recovery by the leffor of the plaintiff, of his term against the tenant, in the actual wrongful poffeffion of the land. By the old law and practice in an action of ejectment (as I before faid) you recovered nothing but damages, the measure whereof was the mefne profits; no term was recovered; but when it became established that the term fhould be recovered, the ejectment was licked into the form of a real action; the proceeding was in rem, and the thing itself; the term only was recovered, and nominal damages, but not the mefne profits; whereupon this other mode of recovering the mefne profits in an action of trefpafs was introduced, and grafted upon the present fiction of ejectment; and I take it, that the prefent action is put in the place of the ejectment at common law, which was indeed a true, and not a fictitious action, and in which the mefne profits only, and not the term, were recovered, for it was |