We are of opinion that judgment should be entered for the plaintiff, on the second count in his declaration. He is clearly entitled to damages for the unlawful exclusion of him from his building. He could recover no damages therefor on the process, under the Rev. Sts. c. 104, by which he regained possession; and it is provided by the 12th section of that chapter, that judgment recovered on that process shall not be a bar to an action for a trespass on the premises thereby recovered. The plaintiff has the same remedy which was formerly open to a demandant, after a recovery in a writ of entry, namely, an action of trespass for mesne profits. See Raymond v. Andrews, 6 Cush. 265; Stearns on Real Actions, (1st ed.) 244, 245, 408— 410; 2 Roscoe on Real Actions, 705.
We express no opinion whether the plaintiff’s first count is maintainable. That depends on the true application of the first resolution in Spencer's case, 5 Co. 16, viz.: “ When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee, although he be not bound by express words; but when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being, and therefore shall bind the covenantor, his executors or administra
In Ireland, the St. of 11 Anne, c. 2, provides that “ all and every person and persons who shall take any assignment of all the residue of any term for years, or life, or lives, their executors or administrators, shall be liable to all the covenants, where-unto the lessees, their executors and administrators, were liable by virtue of the said leases.” See Smythe Land. & Ten. 286; and Earl of Lucan v. Gildea, 2 Hudson & Brooke, 635.
Judgment for the plaintiff.