atkins case dorm versus fortescue march SC post vol whoever come here for a  account of rend and profit pray a discovery as incident to it and for that  reason a defendant can demurrer and plead to the S I matter in easter term the  plain tiff bring this bill for discovery of a deed under which he claim and  that the same may be deposit for safe custody and produce at a trial at law  and for general relief on hear the deed be order to be produce and the bill  retain for a twelvemonth and from time to time retain and still depend in  Michaelmas term the plaintiff bring ejectment but can not proceed for want of  the deed which be then conceal by the defendant a trial be have at the king  bench bar and a special verdict and judgement for the defendant for that it do  not appear that the plaintiff have make a actual entry on the premise before  the day lie in the declaration on the that of November the plaintiff make a  actual entry and in Michaelmas term afterward bring new ejectment a trial be  have at the king bench bar in Michaelmas term and a special verdict judgement  for the plaintiff in Michaelmas term and affirm in parliament February  a surname of Ariobarzanes dorm the plaintiff father die September the d and  the defendant be in possession all the time and therefore the plaintiff insist  they ought to account for the rend and profit from that time or from the  plaintiff first actual entry which be in January or at least from the fill the  original bill for discover the deed of settlement and the prayer of the  supplemental bill file may be to this purpose to this the defendant have both  demurrer and plead as to so much of the bill as seek to compel the defendant  to come to a account with the plaintiff for all the rend and profit of the  estate receive by the defendant since the death of the plaintiff father the  defendant demurrer and for cause of demurrer show that if the plaintiff have  any right or title to rend or profit he ought to prosecute the same at law and  not in this court and as to so much of the bill as seek to compel the  defendant to come to a account c the defendant plead in bar and for plea say  that if the plaintiff have any right c the same accrue due to the plaintiff  above six year before he exhibit his supplemental bill Mr attorney general for  the defendant insist that there be no occasion for the plaintiff to come into  this court for mesne profit because he may recover they at law in a action of  trespass if overrule in this point then he insist on the statute of limitation  as a bar and that the plaintiff ought to be confine to the time his  supplemental bill be file which only atkins pray the mesne profit for the  original bill make no such demand and therefore the statute of limitation  ought to be a bar to carry it any further back that bill for mesne profit be  not very usual in this court and the single pretence in this case be that they  have not the settlement and therefore they can not recover at law but it be  not the want of the settlement it be the slip they make in not make a proper  entry which prevent their recovery at law and therefore the court atkins er p  will not aid a defect of the plaintiff and give he relief here because his own  blunder hinder he from recover at law that it be not a favourable case after  so much litigation both below and in the house of lord the original bill be  mere for the discovery of a deed without which the plaintiff can not make out  his title he have have the relief he seek for the court order the deed shall  be deliver to be carry down to the trial in ejectment and therefore there be  no connection between the relief pray by the former bill and the relief pray  by the supplemental bill Lord chancellor this be a exceed plain case the  circumstance of hardship will be a consideration hereafter at the hear of the  cause the only question now be whether the two defence set up be sufficient to  bar the plaintiff relief the demurrer be to so much of the bill as seek a  account from the death of the plaintiff father so that it take in the whole  time the plea be to so much as seek a account of rend and profit before the  fill of the supplemental bill so that the difference between the matter  demurrer to and the matter plead to be no more than this the demurrer take in  the whole time and consequent the time precedent to the six year the plea only  a part of the time videlicet before the fill the supplemental bill which bring  it to this question whether a man can in this coart demurrer and plead to the  same matter every man who come here for a account of rentsand profit pray a  discovery as incident to it and therefore the distinction which have be  attempt be without a difference and for this reason I be of opinion a  defendant can demurrer and plead to the same matter atkins there be no such  thing ever know at law as plead and demurrer to the same matter and the act of  parliament for the amendment of the law do not allow of this but only to  demurrer to one matter and to plead to another the same rule in this court and  the inconvenience much less here than at law for a man who demurrer there  demurrer in chief and be a perpetual bar if judgement shall be against he and  therefore it be at his own peril if he do it but if a defendant demurrer here  and be overrule he may insist afterward upon the same thing by his answer when  there be a plea which cover too much the court will allow it to stand for part  and overrule it for part but as to a demurrer it be otherwise Suffolk v green  ante vol note as to the merit I be of opinion that the plaintiff be very well  justify in come here for a account of the mesne profit notwithstanding the  suggestion of hardship upon a defendant who life upon they in the mean time  there be case where a man may come here though he have recover in a ejectment  the original of the plaintiff apply to this court be for a discovery of the  principal deed of settlement but then it have be say the plaintiff know what  his title be and may have bring his ejectment without come here be a plaintiff  oblige to run any risk because he may possible recover at law without apply to  this court first but there be a much strong part of the plaintiff case and  that t be he have no title at law because here be a term stand out of  ninetynine year under this deed of settlement which may have be set up against  he and then he will have be nonsuit oven if he have the settlement itself  unless this court have prevent any advantage be take of the term at law I be  of opinion that the court even upon the reserve all further direction may have  give any subsequent relief which have be incident to the plaintiff case  another thing which weigh material with I be that if the plaintiff shall bring  any action of trespass for the mesne profit judge have be doubIful where there  have be any difficulty in a case whether they shall not suffer defendant to  enter into the title and if that shall happen to be the case the term in the  settlement may even then be set up against the plaintiff and he will be  nonsuit atkins as to the plea of the statute of limitation every thing I have  say upon the foot of the demurrer hold more strong against the plea upon the  whole I be of opinion the plea and demurrer must be overrule as to all  equitable circumstance and how far the account must be carry back will come  more proper before I at the hear of the cause and there be no occasion to  consider they at present vide post vol atkins er p