either denies a possession in fact in the plaintiff, which is necessary to support an action for a trespass; or the defendant may under it show title in himself or in a third party. That point, after long discussion, was finally settled by the decision of the Court of Exchequer Chamber, in Jones v. Chapman, 2 Exch. 803.† The defendant, therefore, by her third plea professes to say either that the plaintiff was not possessed at all, or that somebody else had title. To this the plaintiff replies that the defendant ought not to be permitted to deny his title, because there has been an adjudication on the matter in an action between them which. has determined the title. It is objected to this, on the part of the defendant, that that is not the effect of a judgment by default in ejectment. From the time, however, of Astlin v. Parker, 2 Burr. 665, down to Doe v. Wright, 10 Ad. & E. 763 (E. C. L. R. vol. 37), 2 N. & P. 672, it has always been held that a judgment by default in an action of ejectment, followed by a writ of possession, even though not pleaded, is evidence of the title and possession of the plaintiff, as against the tenant in possession, from the day of the demise in the declaration: and, on the authority of the last-mentioned case, it is now well settled, that, if properly pleaded, it is an estoppel. It is urged by Mr. Deigh ton, that, at all events, the judgment cannot be pleaded as an estoppel unless followed by a writ of possession. But an entry in pais is as good for all purposes as a writ of possession executed and returned; and an entry in fact is sufficiently alleged here: and it is a mistake to say that matters of fact may not be pleaded by way of estoppel. The question is not whether the defendant is estopped from denying these [*444 matters of fact; but whether, having admitted them, as she does. by her demurrer, she is estopped from denying the plaintiff's possession. I doubt whether it was even necessary, as to the third plea, to state any entry. Under that plea, the defendant might prove title in a third party during the whole period covered by the declaration: but it is clear that the plaintiff was entitled to the possession for a portion of that time, viz. from the 26th of October, 1853, till the entry; that was determined by the judgment in the ejectment. As, therefore, the defendant could not plead the plea to the full extent, she cannot plead it at all. It is said that the plea is distributive, and therefore the plaintiff should show to what portion of the time the estoppel is applied. The title and possession, however, are both traversable; and they are presumed to continue until the contrary is shown: and, as the replication shows a title in the plaintiff by matter of record from the 26th of October, 1853, until entry, his title must be presumed to be still continuing, the contrary not being shown. If, indeed, there be circumstances to prevent the judgment from operating as an estoppel since. that period, such, for instance, as a subsequent demise to the defendant, those circumstances might be replied: but the defendant cannot be allowed to admit the judgment, which is conclusive between the

sums.

parties, and deny the continuance of the plaintiff's title. It is further suggested that the plea of not possessed being, since the Common Law Procedure Act, 15 & 16 Vict. c. 76, s. 75, capable of being taken distributively, must be so taken. The section enacts that "pleas of payment and set-off, and all other pleadings, capable of being construed distributively, shall be taken distributively, and, if issue is taken thereon, and so much thereof as shall be sufficient answer to part of the causes of action proved shall be found true by the *jury, a verdict shall pass for the defendant in respect of so much *445] of the causes of action as shall be answered, and for the plaintiff in respect of so much of the causes of action as shall not be so answered." The intention of the framers of that act, I think, was, to meet such cases as Cousins v. Paddon, 2 C. M. & R. 547,† and Tuck v. Tuck, 5 M. & W. 109,† where a difficulty arose as to entering the verdict where there were pleas of payment or set-off not pleaded to specific The 75th section did not intend to alter the rule of pleading which makes a plea that is bad in part bad altogether; but the meaning of it is, that, when you go down to trial, if the facts can be taken. distributively, they are to be so taken: the record is still to be taken as a whole record. And in this there is no injustice. The plaintiff complains of a trespass; the defendant says, "You were not possessed of the premises upon which the alleged trespass was committed; for, somebody else had title:" to which the plaintiff answers,-"You are not at liberty to deny my title, or to set up the title of a third person, because there has been a judgment in a proceeding between us which has determined the title to be in me, and under which I have entered.” If any circumstances have occurred since that recovery to alter the position of things, the defendant should have shown that by way of rejoinder. The same observations afford an answer to the fourth plea, which sets up a demise from George Wilkinson to Hester Thomas for twenty-one years from the 29th of September, 1846, and a subsequent demise from Thomas to the defendant for one year from the 25th of March, 1847,-with this additional remark, that it sets up a term that could not have been created consistently with the judgment in ejectment which is admitted by the plea. I think, therefore, the defendant was estopped from *setting up either defence, and that the plaintiff is consequently entitled to judgment.

*446]

MAULE, J.—I am of the same opinion. The replication does not show the title of the plaintiff; it only shows matter to estop the defendant from setting up the defence attempted. This is the proper province of a replication by way of estoppel. If it shows something else also, it is not the less a good replication by way of estoppel, provided that other matter is not inconsistent with the matter of estoppel. The replication seems to me to come to this:-The defendant by her (third) plea says the plaintiff is not possessed, that is, that he has no such

right of possession or property as to entitle him to maintain trespass for the mesne profits. The plaintiff by his replication says, That may or may not be true; but you have no right to say so, for, there has been a decision between us before a competent tribunal, in which a judgment has been pronounced affirming my title as against you." That is an estoppel of the highest degree and it amounts to an allegation, that, in a proceeding in ejectment between the plaintiff and the defendant, it was decided by a competent tribunal, that, from and after the 26th of October, 1853, the plaintiff was so entitled to the possession as to be able to maintain this action of trespass for the mesne profits. That is inconsistent with the defendant's plea of not possessed. The plaintiff and defendant are both named in the writ; the defendant being alleged to be the tenant in possession. She is, therefore, bound by the estoppel. The difference which formerly existed between actions of ejectment and other actions, exist no longer: the Common Law Procedure Act puts all upon the same footing; and the fact of the plaintiff's title having been determined in an action of ejectment, the result is the same as if it had been determined in any other form of *ac[*447 tion. It is said that the plea is distributive, and that it is as if there were several pleas applying to various portions of time, one before and another after the time of the suing out of the writ, and that the replication should have been confined to the former period of time only. The plea, however, is pleaded to the whole time; and, if the defendant is estopped from pleading it as to any portion of the time, she is estopped from pleading it altogether. Now, it cannot be denied that she is estopped as to some portion of the time covered by the plea, and therefore she is precluded from pleading it, and the replication is good. If the replication had addressed itself to trespasses committed before the 26th of October, 1853, I admit that it might have been defective: but it is not so pleaded. The answer to the defendant's objection is, that, when once it is alleged that there was a recovery in ejectment, the title is conclusively shown to be in the plaintiff from the day of the demise. He is not bound to aver that that state of things continued. That is to be presumed. If it did not continue, it was for the defendant to show that by her rejoinder. At all events, it could only be matter of special demurrer, and special demurrers are now at an end. I therefore think the replication is a sufficient answer to both the pleas, to both of which these remarks apply, and more especially to the fourth, which is also open to further objection.

CRESSWELL, J.-I am of the same opinion. It cannot be contended now, that the recovery in ejectment is not a good replication by way of estoppel to a plea of not possessed in trespass for mesne profits. Doe v. Wright was much considered; and I see no reason to find fault with the decision, although the Court of Exchequer in a subsequent case of Doe v. Wellsman took exception to one particular passage of

Lord Denman's judgment. In *Doe v. Wellsman, the declaration *448] stated the entry and expulsion on the 10th of December, 1844, and the expulsion and taking of profits to have continued till the 10th of March, 1846. The defendant pleaded that the closes in which, &c., were not, nor were any of them, or any part thereof, the plaintiff's, modo et formâ. The plaintiff replied to the whole plea, by way of estoppel, a recovery by the plaintiff against the casual ejector on a declaration in ejectment stating the demise to have been on the 14th of October, 1845, for a term of twenty years, and concluding with a prayer of judgment if the defendant during that term ought to be admitted, against the said recovery, record, and proceeding, to plead that plea and the court held, on special demurrer, that the replication, though professing to apply to the whole plea, applied only to part of the time of the trespass complained of in the declaration, and was therefore bad. I think there may be strong reasons for saying that such a plea as this might be entered distributively. But the better answer to the defendant's objection seems to me, to be that there is nothing to show that the replication does not cover the whole period.

CROWDER, J.-I also am of opinion that the plaintiff is entitled to the judgment of the court on the demurrer to this replication. Upon the point mainly relied on by the defendant, viz., that this is a replication of a judgment recovered in ejectment by default, which is not the subject of an estoppel, whatever might have been the case before the Common Law Procedure Act, I agree with my Brother Maule in thinking that the 168th and 170th sections of that statute place the parties, with respect to judgment by default in ejectment, in precisely the same position as the parties in any other forms of action. The question is, whether it is a good replication to either of these pleas. It is said that *449] the plea of not *possessed may be taken distributively, and that it does not appear that the estoppel applies to any time subsequent to the entry of the plaintiff: and Doe v. Wright is referred to. But the answer is, that the presumption of law is, that the title is continuing until the contrary is shown. And this imposes no hardship on the defendant: for, if there were any change of circumstances, she might have shown it by her rejoinder.

Judgment for the plaintiff.

In the Matter of the Acknowledgment of MARY BINGLE. Nov. 23.

The Court allowed a certificate of acknowledgment and affidavit of verification (taken in New South Wales) to be received and filed, notwithstanding an erasure in a material part of the affidavit,there being satisfactory evidence (by affidavit) that the erasure was made before the acknowledgment and affidavit were taken and sworn.

OGLE moved that the registrar of certificates of acknowledgments

of married women, under the 3 & 4 W. 4, c. 74, might be at liberty to receive and file the certificate and affidavit in this matter, notwithstanding certain defects therein. In the first place, the commission was addressed to John Bingle the younger, and he signed it "John R. Bingle." There was, however, an affidavit identifying the signature and the person of John Rayden Bingle as being those of the party described in the certificate as John Bingle the younger.

MAULE, J.-That will do.

Ogle. The other defect is this:-In that part of the affidavit verifying the certificate of acknowledgment, which states the inquiries made of the married woman previous to her making the acknowledgment, the word "not" had been by accident inserted, thus, and that, in answer to such inquiry, the said Mary Bingle declared that she did not intend to give up her interest," &c. There was an affidavit by the attorney who prepared the *document, and of his managing-clerk, and the [*450 law-stationer who engrossed it, stating that the word "not" did not appear in the draft (which was exhibited to the court), and that the word was struck through with a pen before the document was sent out to New South Wales: but the magistrate before whom it was sworn had omitted to place his initials in the margin. The affidavit of the attorney also stated that "the deponent verily believed, and had no reason whatever to doubt, that the acknowledgment referred to in the affidavit of verification was freely and voluntarily made by the said Mary Bingle, and that she did intend to give up her interest in the said hereditaments giving occasion for the said acknowledgment (which interest was merely contingent on her surviving her husband), without having any provision made for her in lieu of, or in return for, or in consequence of, her so giving up her interest in the said estate." [MAULE, J.-I doubt whether it would answer your purpose to have this affidavit filed. The alteration is in a material part. The presumption is that the erasure was made after the deed was executed.] The affidavit would cure that. [JERVIS, C. J.-The affidavit will be filed here; the certificate at another place.] In Doe d. Tatum v. Catomore, 16 Q. B. 745 (E. C. L. R. vol. 71), it was held, that as a deed cannot be altered after execution, without fraud or wrong, the presumption, if an alteration appears, is, that it was made before execution. Lord Campbell there says: "In Co. Litt. 225 b, it is said, that, of ancient time, if the deed appeared to be rased or interlined in places material, the judges adjudged, upon their view, the deed to be void. But, of latter time, the judges have left that to the jurors to try whether the rasing or interlining were before the delivery.' In a note (136) upon this passage in Hargrave and Butler's edition of Coke upon Littleton, it is laid down, "Tis to be presumed that an interlining, if the contrary is not proved, was made at the time of making the deed.' This doctrine seems to us to rest upon principle. A

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