aslin agt parkin KB a action for the mesne profit may be bring in the name of  the nominal plaintiff in ejectment after judgement by default against the  casual ejector burr S c see SC burr with note this be a case reserve by the c  I upon a point which arise before he in a cause at last York assize the  opinion of all the twelve judge be now deliver by Kenyon Lord Mansfield CJ  this be a action of trespass for the mesne profit Kenyon er p and cost of a  ejectment as consequential damage bring in the name of the nominal plaintiff  in the ejectment against the tenant in possession after judgement by default  against the casual ejector on the trial the plaintiff prove the judgement by  default against the casual ejector and the writ of possession execute and  return he also prove the actual possession of the defendant and receipt of the  profit for part of the time comprehend in the demise state in the declaration  in ejectment the value of the profit and the amount of the cost but they do  not prove the plaintiff possession at the time the defendant do the trespass  on the trial the defendant counsel insist that as this be a possessory action  the plaintiff shall prove that the plaintiff be in possession when the  trespass be commit they say there be a material difference between judgement  against the casual ejector for want of a appearance which be this case and  judgement upon verdict against the tenant in possession where the defendant  have appear and enter into the common rule and though the case of jefferies v  dyson Str carry it no further than that in the case of judgement against the  casual ejector the defendant be at liberty to controvert the title in a action  for the mesne profit but not to controvert the possession yet that both those  resolution have since be deny in a case Geo in c b barn where it be hold saint  that the title can not be controvert but dly that the plaintiff must prove his  own possession to this they add some circuittraditions of plaintiff be nonsuit  on this point Kenyon at the time of the trial on principle I be clear of  opinion against the objection and the jury accord find for the plaintiff but  as precedent be cite and for the sake of practice I reserve the case to take  the opinion of all the judge upon it without any delay or expense to the party  accord on the first day of term I propose the question to all the judge and  they take till Thursday last to look into the case and not only print but ms  case be produce of opinion both way but they be now of no consequence as all  the judge of England be unanimous of one opinion we be all of opinion that the  nominal plaintiff and the casual ejector be fictitious character introduce  mere for form for the more effectual and expeditious way of try the title  without delay by special plead c and do substantial and in fact represent the  lessor of the plaintiff and the tenant in possession they be substantial the  party the latter must be serve and may set aside the proceed for want of  service and can lose the possession without have notice and mean to defend  himself there be no material difference whether the judgement be by default or  after a verdict in the latter case the title be try and find against he in the  former he confess the plaintiff title a action for the mesne profit be the  consequence of the judgement in ejectment which as long as it stand  unimpeached be conclusive against the tenant in possession and preclude he  from controvert the possession of the nominal plaintiff the lessor may bring  Kenyon that action in his own name or in the name of the nominal plaintiff and  it be the lessors action in who name soever it be bring but the judgement in  ejectment only conclude as to the subject matter therefore it prove nothing  beyond the time lie in the demise it prove nothing as to the time the  defendant have be in possession therefore that and the value must be prove at  the trial as be do in this case we be all unanimous in our opinion on this  matter find upon principle and hope it will serve to show this action in its  true light as the most speedy and expeditious way of try title and do justice  between the party postea to be deliver to the plaintiff