case dorm versus fortescue April see Hicks v salt de g m g Howard v earl of  Shrewsbury lr Eq SC ante vol vin pl pl vin pl SC Clear both in law and equity  and from natural justice that the plaintiff from the death of his father the  time when his title accrue be entitle to the rend and profit this cause come  on again before the court upon the equity reserve Mr solicitor general counsel  for the plaintiff say the question be whether this court can decree the  plaintiff a account of rend and profit from the time of his title accrueing  which be from the death of his father eusebe dorm who die the d of September  the plaintiff be oblige to come into this court in order to have the family  settlement produce at the trial at law for the defendant wrongful detain it  notwithstanding he have get all the four part in his own band and plead  himself a purchaser for a valuable consideration Lord Talbot at the hear  direct the deed to be produce at the trial at law in order to determine the  title there and the bill to be retain for a twelvemonth and a term for year to  be remove out of the way and all further direction to be reserve till after  the trial the original bill beside pray general relief and that the deed of  settlement may be deposit in court for the plaintiff benefit Reg lib a fol the  plaintiff title have be establish at law he be now entitle to a complete  relief a account of the rend and profit for if he have not the rend and profit  as well as the estate he have not complete justice do there be case where at  law a person may not recover rend and profit and yet this court will direct it  where it have a proper jurisdiction as in a action for rend and profit which  be in the nature of a action of trespass if the person die against who it be  bring noritur cum mask but this court will direct a account of rend and profit  notwithstanding atkins it be say that if the court decree a account of rend  and profit that it must begin only from the time of the supplemental bill but  the court wherever they decree it do it from the time of the title be  accrueing there be no laches or neglect on the part of the plaintiff for his  father die the latter end of and the plaintiff bring his ejectment in and his  original bill in by the statute of Gloucester damage in a assize be give and  after a trial in ejectment there can be no other way of measure the damage but  by rend and profit it be object at a former hear that the statute of  limitation have bar the atkins er p plaintiff from carry back the account any  further than the fill the supplemental bill six year have incur before it be  bring but when this mat come on march and the demurrer and plea be argue this  objection be overrule and be now out of the question Lord chancellor ask if  the original bill charge the defendant Mr justice fortescue to be in  possession of the estate for it be admit that it do not pray specifical a  account of rend and profit but only general relief Mr solicitor general the  bill indeed do not charge possession in the defendant but it set forth that  the plaintiff have bring ejectment against he the case cite by Mr solicitor  general and the rest of the counsel for the plaintiff be Coventry versus hall  Ch Cas d in Rep in Chan the duke of Bolton versus dean Prec in Eq Bennet  versus Whitehead p wms vern anon after they have finish his lordship adjourn  the cause and on the d of June it come on again when Mr attorney general for  the defendant say that the avow end of the original bill be not to try the  right in a court of equity for it do not pray possession or the titledeed to  be deliver up or the estate neither do it ask a account of the rend and profit  nor charge the defendant with the receipt of they atkins the decree of this  court and of all court must be secundum instigation as well as let the decree  have be already make for all the purpose pray by the original bill namely that  the deed shall be produce and a term for year remove out of the way at the  trial at law where the right can only be determine at law and the plaintiff  can come here original for the determination of the right there be no instance  where this court will decree a account of rend and profit the plaintiff have  go altogether on the foundation of its be a legal right state it so in his  bill and have not pray the court to determine the right in any shape whatever  the court can say now that the final right to the inheritance be determine for  Mr justice fortescue may upon the new ejectment bring by he recover it again  and therefore if the court shall decree a account of rend and profit it will  be decree at the same time that the right be absolute determine and for this  reason while the ejectment be depend this court can proper decree a account of  rend and profit in the case of Coventry versus hall the court there decree the  rend and profit because they have determine the right to be in the plaintiff  which differ it very much from the present case the plaintiff do not make a  actual entry till October as the original bill do not extend to this what they  call a supplemental bill be to all intent and purpose to be consider as a  original bill for where a party bring a supplemental bill and pray a new  relief it must be take as a original one that the court may as well decree a  perpetual injunction as decree the title deed which the plaintiff pray by  their supplemental bill to be deliver up to they Mr brown of the same side say  the plaintiff elect to try his title at law and pray in this court a  particular species of relief the produce a deed in order to enable he to try  it there and when this be decree here they have give he all the relief he ask  there be nothing point out in the bill but only a defect and impediment to his  try the title at law for the only thing which be pronounce by the decree or  can be decree atkins be the produce the deed and remove the term out of the  way the deed be in Mr justice fortescue hand be no reason why they shall have  a account of rend and profit here for after the deed be produce they may have  recover the rend and profit at law for they be as much recoverable at law as  the title itself in the case of Bennet versus Whitehead a person be prevent by  fraud from receive the rend and profit which give this court the proper and  only jurisdiction the defendant know they in that case to be only leasehold  land as he have the for that deed in his hand and yet set up a right to they  as freehold atkins er p there be no pretence of any fraud here for the  plaintiff in his original bill have state the whole title under the settlement  and therefore nothing be conceal from he that be necessary for he to know  where once a person have make his election to proceed at law he must take his  fate that re post atk and though there be a determination in favour of the  plaintiff at law yet a court of equity will not think this be a decisive  determination unless there be a application to the court express to prevent  the question from be litigate again and for a perpetual injunction as there be  a new ejectment bring till a trial have be have upon it it be doubtful at  least whether the defendant may not recover the right again that the  supplemental bill be not proper so for it be a new relief which be pray to say  that by pray general relief under the original bill they be entitle to a  account of rend and profit will be carry it too far and attend with bad  consequence for it will be allow party to take the advantage of accident which  have happen after a decree and which can not possible be foresee at the time  of bring the bill they can for the plaintiff show that this court will decree  a account of rend and profit where there be no trust stand in their way or any  ignorance of their title at law atkins the ejectment be bring before the fill  of the bill and if they have be guilty of a error in bring those ejectment I  do not know that this court sit here to relieve against the blunder of party  in ejectment they afterward bring new ejectment and recover upon they what  hinder they then from bring a action of trespass for the mesne profit and it  may be do with as much ease and less expense than a account take before a  master as to the delivery of the deed your lordship will not do it as it will  be lie the defendant under such difficulty as he can never get over and will  be equal in every respect to grant a perpetual injunction and prevent he from  ever try the right again and submit that the court ought to dismiss the bill  entire as to the account of rend and profit Mr clerk of the same side cite the  case of Owen contra aprice Ch Rep Lord chancellor I be very well satisfy in my  opinion upon this case the general question be whether the plaintiff be  entitle to a account of the rend and profit and if he be entitle to they from  what time the first divide itself into two consideration first whether on the  foot of his general title the plaintiff have a right to a account of rend and  profit from the time of his title be accrueing second whether in this court he  have a right to demand they as to the first nothing can be clear both in law  and equity and from natural justice than that from the death of his father the  time when his title accrue he be entitle to the rend and profit there be a  settlement make in for a valuable consideration and the plaintiff claim under  the use of that settlement by which he take a estatetail Mr justice dorm who  die last be tenant for year with remainder to his son in tail which son die in  the life of Mr justice dorm and on his death the plaintiff father be entitle  and after his father die the plaintiff himself atkins from that time he have a  right in equity and conscience and if prevent from come at it it must be some  impediment in law or equity that hinder he from receive they it have be say  the defendant be in possession under a title or such a title as they be  mistake in that if they have take the proper method they may have make it good  and that Mr justice dorm and his son may have bar the estate tail either by  get the trustee to preserve contingent remainder to join with they or by  execute a feoff upon the land instead of a fine to make a tenant to the prcipe  as to get the trustee or the heir to join to make a tenant to the prcipe that  be a very uncertain thing for I believe trustee to preserve contingent  remainder will have be extreme cautious in consent as there be no marriage  settlement on foot as a plausible pretence for declare new use different from  those under the settlement as to the other way I lie no weight upon that for  it be only say they may atkins er p have do it by another method which the law  call a wrong such a feoff as that will have have its effect and can only  operate as a seize and will have gain a freehold by wrong and that may have  make a tenant to the prcipe contra tailor ex they atkins v Horde I burr vide  post atk but no presumption of favour arise from thence for it be a wrong at  least however it may have substantiate the title at law the plaintiff  therefore certain be entitle to the rend from the accrual of his title the  next branch of the case be more material which be whether the plaintiff have a  right to demand a account of the rend and profit in this court and I be of  opinion under the circumstance of this case he have a right to come into this  court for that purpose there be several case where the court will do it and  several to be sure where they will not but I can by no mean admit the latitude  in the anon case in vern or rather in that note of a case note where a man be  put to his election whether to proceed at law or in this court if the bill be  for the land and to have a account of the mesne profit he may elect to proceed  in a ejectment at law for the possession and in equity upon the account  because at law he can recover damage for mesne profit from the time only of  the entry lie in the declaration vern atkins for if a man bring a ejectment  bill for possession and a account of rend and profit where there be no mixture  of equity Tilley v bridge pre Charles Owen v aprice Charles Rep Fonbl treatise  of equity vol Hutton v Simpson vern the court will oblige the plaintiff to  make his election to proceed here or at law and if at law he must proceed for  the whole there that case may very possible be a bill bring by a prochein any  for a infant or attend with some special circumstance omit by the reporter if  it be the bill of a infant who have a right to come here the court may elect  he to proceed at law and retain the bill for the mesne profit but as I say  before there be several case where this court do decree a account of rend and  profit and that from the time the title accrue see Drury v Drury Charles Rep  and the case cite in the note infra as where a man bring his bill in this  court where there be a trust and upon a mere equitable title there he shall  recover the estate and the court will give he a account of the rend and profit  and that from the time the title accrue unless upon special circumstance and  then they will restrain it to the time of bring the bill dean v wade Charles  Rep as where the defendant have no notice of the plaintiff title nor have the  deed and write in his custody in which the plaintiff title appear or where the  title of the plaintiff appear by deed in a stranger custody so where there  have be any default or laches in the plaintiff in not assert his title soon  but he have lie by there the court have often think fit to restrain it to the  fill of the bill so in the case of a bill bring by a infant to have possession  of the estate and a account of rend and profit the court will decree a account  from the time of the infant S title accrue for every person who enter on the  estate of a infant enter as a guardian or bailiff for the infant so Bennet v  Whitehead p W Tilley v bridge Prec Charles there be other case where the court  will do it mere upon a legal title as wherever the plaintiff have be keep out  of it by fraud misrepresentation or concealment of the defendant duke of  Bolton v dean Prec Charles so in the case of dower if a widow be entitle to  dower and her claim be mere upon her legal title but can ascertain I the land  out of which she be dowable this court will assist her to find out the land  and the court will order her to proceed upon a particular part and reserve the  further consideration till after judgement and if her title of dower be  establish will atkins give her profit from the time not only of her demand  which be the time she be to have it in her writ of dower but will give it her  from the time of her title accrue though the statute of the Henry ch give her  damage only from her demand note in Curtis v Curtis bro Charles Rep the master  of the roll observe that Lord hardwicke word must have be misconceive by Mr  atkins as to what he have suppose to have say in respect of the time from  which the stat Henry give the widow damage I will put this case suppose a  widow entitle to dower of a estate upon which atkins er p a term for year be  stand out and she have her title of dower out of the reversion of the term and  she come into this court to have it remove out of the way they will decree her  a account of the rend and profit from the time of her title accrue and will  set the term as a satisfy one out of the way but if that term have be out of  the way and she have no need to come into this court it will have be otherwise  vide Curtis v Curtis bro Charles Rep delver v hunter bunb then consider how  far the present come up to this case it appear that the settlement under which  the plaintiff title arise be in the hand of the defendant and detain by they  though I do not say it be fraudulent obtain but still the plaintiff can not  come at it without the assistance of this court the plaintiff by his  supplemental bill pray beside the account of rend and profit that the say deed  of settlement and the duplicate thereof and all other deed and write which  concern the say premise may be deliver to he req lib a fol vide townsend v ash  post atk the plaintiff it be true bring his ejectment before he bring his bill  here and from hence the defendant counsel have infer that he know his title  but how do he know it why only by guess for it be plain that the plaintiff do  not so much as know there be this year term stand out for the deed by which it  be create be not so much as mention in the bill and he only know it by its be  read in the cause this be one reason which weigh with I there be another  ground still remain and a strong one that I think this to all material purpose  a equitable title here be a term create of year by the settlement the legal  estate be in trustee and the term be appoint likewise to be attendant on the  inheritance so that it be a plain bar in the plaintiff way at law and he have  then bring his ejectment at random Lord Talbot order the bill to be retain for  a twelvemonth that he may if he please bring a new ejectment beside if the  plaintiff have know any thing of this trust term he will certain have make the  trustee party to the suit that they may convey to he if he shall eventual  appear to have the remainder in the inheritance but notwithstanding this court  have undoubted a jurisdiction with regard to decree rend and profit yet if the  plaintiff have not take a proper remedy or proceed in a proper method to have  a account he can be entitle and whether he be or not will depend upon two  thing atkins first as to the nature of the original bill second upon the  supplemental bill as to the first it have be insist for the defendant that it  be bring for another purpose to visit to look upon and be confine mere to the  discovery of the settlement and for produce the deed on the trial at law to be  sure if the plaintiff have not make such a case by his bill as will entitle he  to a account of rend and profit it be right say that his pray general relief  will not entitle he though Mr dobbins a counsel former in this court use to  say that pray general relief be the next best prayer to the lord prayer cook v  martin ante atk vol the bill then no doubt be inartificial and defective draw  for want of so full a charge as may have be lie of the possession in the  defendant but then the plaintiff have charge that he have bring ejectment  against the defendant for this estate which be tantamount to charge possession  and the defendant Mr justice fortescue actual by his answer admit himself in  possession where the defendant counsel will confine the general relief pray by  the original bill to the produce the deed at the trial they be mistake in the  nature of the bill for the bill desire not only that the deed may be produce  at the trial but deliver up for the benefit of the plaintiff and what put it  out of all doubt be that here be likewise a affidavit annex of the want of the  deed which make it a very strong case for the plaintiff because the annex a  affidavit be where the plaintiff have a intention to change the jurisdiction  from a court of law to a court of equity anon ante atk and if the bill be mere  for a discovery of a deed or for produce it at law no affidavit be necessary  and this be the constant distinction and as this appear to be the nature of  the bill so I think my Lord Talbot understand it in this light and if the  trustee have be party to it the court may have decree possession and a  conveyance of the trust estate if they think it a clear point atkins er p for  the plaintiff or may do as Lord Talbot have do direct a trial at law when it  be doubtful here his lordship have likewise decree the deed to be produce at  the trial at law and that the term for year shall not stand in the way and  reserve all further consideration atkins it be all one as to the jurisdiction  of the court whether the make use of one modus of expression in draw up their  decree or another or whether they direct the party to proceed in the ejectment  or a trial at law but if the very trustee of this term have be before the  court I will not have direct a assignment of this trust till the point in  relation to the title have be first determine I be of opinion that the  original bill extend to every thing which be now insist on by the plaintiff  and that I ought not to confine it to the single matter of produce the deed at  the trial and that in the first place the court under this will may very  proper give direction as to the disposition of the title deed but suppose the  original bill to be as defective as the defendant counsel will have it can any  thing be more proper than to bring a supplemental bill to put this matter in  issue and to supply the defect of any in the original bill supplemental bill  be often bring even in aid of a decree of this court as in a decree to account  for want of full direction before and direction be give under the supplemental  bill that the new matter shall be connect with the former decree if the  plaintiff original bill have not pray this general relief it be very proper to  bring a supplemental bill that he may have a entire relief and I think that  they ought to be consider as one bill and connect together all the case which  be material have be cite the first case be that of Coventry and hall Charles  Rep S c or hill which be only a questionable title where a recovery can not he  have at law the case of the duke of Bolton versus dean be mere a title at law  and therefore applicable to the present point for I do not know that the duke  of Bolton can be say to be out of possession for where the tenant hold over  after his term expire he be by sufferance only and therefore his possession be  the duke of bolton possession har   Litt b note Cowp this be as strong a case  to leave it to law as can be and yet the court decree under that bill a  account of rend and profit Bennet versus Whitehead p W S c be a much strong  case and more similar to the present I be of counsel in it myself and as it be  in the book and also upon memory it be a mere legal title and there the deed  be in the custody of the plaintiff himself here in the defendant hand and  therefore this be a strong case atkins still it be object that where a man be  bon trust possessor he shall not account accord to the rule of the civil law  and the rule of this court and the civil law be strong in this respect than  the law of England but where a man shall be say to be bon trust possessor be  where the person possess be ignorant of all the fact and circumstance relate  to his adversary title which can not be here for Mr justice fortescue have all  the deed and the very settlement itself on which the title depend another  objection have be make that though the plaintiff have obtain a verdict at law  this be not a final determination of the party right and therefore the court  ought not to decree a account of rend and profit because a new ejectment be  now depend and the defendant may possible recover the estate back again this  will narrow the jurisdiction of the court too much there be instance where  upon a mere legal title the court have decree a account of rend and profit as  in the case of a infant who bring a bill for possession and for a account of  rend and profit and vet they do not decree a perpetual injunction though they  decree a account of rend c suppose a heir at law bring a bill for discovery of  deed and write and for the mesne profit and the court decree he the deed c yet  if the defendant shall afterward at law make out a better right than he do  here this court will not disturb he in it but assist he in recover the deed  back again if I be to delay decree the account of rend and profit now it will  be attend with infinite inconvenience and therefore I be of opinion that the  plaintiff be entitle to a account of the rend and profit from the time of the  plaintiff title accrueing which be from the death of his father in atkins er p  and as to the deed and write lot they be bring before the master upon oath and  as to the disposition of they I shall reserve the consideration of that till  the final right to the inheritance be determine the opinion of the judge in  the house of lord in the case of dorm against fortescue as deliver by Lord  chief justice will I apprehend will not be unacceptable and therefore venture  to give it to the public and hope in such a manner as not to do any injury to  the memory of that very learned and able judge