tute, upon the payment of the sum due upon one of the mortgages only.(j) If, upon a motion of this nature, any doubt exists as to the amount of what is due between the parties, the Court of King's Bench will refer the case to the master, and the Court of Common Pleas to the prothonotary, whose respective duty it is to tax the costs; and in a case where an affidavit was made, that the mortgagee had been at great expense in nccessary repairs of part of the premises in his possession, (the ejectment being brought for the residue,) and it was prayed, that the prothonotary might be directed to make allowance for such repairs; the Court said, that the rule must follow the words of the statute, and that the prothonotary would make just allowances and deductions.(k) If, however, after taxation, the debt and costs are not paid, the lessor must proceed in the suit, and cannot have an attachment.(1) The cases in which the Courts have stayed the proceedings under stat. 4 Geo. II. c. 28. have already been considered. (m) (j) Roe, d. Kaye, v. Soley, W. Blk. 726. It does not appear from the report of this case, that the other mortgaged premises were included in the ejectment; but it is difficult to reconcile the decision either to the letter or spirit of the statute, unless they were also (k) Goodright v. Moore, Barn. 176. 328 CHAPTER XIII. OF THE ACTION FOR MESNE PROFITS.[1] WHILST the action of ejectment remained in its original state, and the ancient practice prevailed, the measure of the damages given by the jury, when the plaintiff recovered his term, were the profits of the land accruing during the tortious holding of the defendant. But upon the introduction of the modern system, an alteration took place in this particular; and as the proceedings are now altogether fictitious, the damages assessed are only nominal, and do not include the real injury sus tained by the claimant from the loss of his possession. [2] When, therefore, this alteration took place, it became necessary to give another remedy to the lessor for these damages; and this was effected by a [1] A recovery of nominal damages in Ejectment is no bar to an action for the mesne profits. Van Alen vs. Rogers, 1 Johns. Cas. 281. And it is unnecessary to enter a Remittitur Damna. Ibid. A recovery in an action of trespass on land, is a bar to an action for the recovery of mesne profits anterior to the verdict in trespass. Coleman vs. Parish. 1 M' Cord's Rep. 264. Where the title of the lessor, being a Life Estate, ends before the trial of the cause, the plaintiff, though he cannot turn the defendant out of possession, is entitled to judgment, so as to enable him to recover the mesne profits, but with a perpetual stay of the writ of possession. Jackson ex dem. Henderson vs. Davenport, 18 Johns. Rep. 295. After the re-entry of the Disseisee, the law supposes the freehold all along to have continued in him; and he may maintain trespass against the Disseisor and his servants. Dewey vs. Osborn, 4 Cowen's Rep. 329. [2] After judgment for the plaintiff in Ejectment, trespass for the mesne profits, without proof of an actual trespass, does not lie against a person, who was no party to the suit, when the judgment was entered. Alex. ander vs. Herbert, 2 Call's Rep. 508. new application of the common action of trespass vi et armis, generally termed an action for mesne profits :(n)[3] in which action, the plaintiff complains of his ejection and loss of possession, states the time during which the defendant (the real tenant) held the lands and took the rents and profits, and prays judgment for the damages which he has thereby sustained. [ *329 ] It has been said, that a lessor in ejectment may, if he *please waive the trespass, and recover the mesne profits in an action for use and occupation ;(0) but this election must be limited to the profits accruing antecedently to the time of the demise in the ejectment; for the action for use and occupation is founded on contract, the action of ejectment upon wrong, and they are, therefore, wholly inconsistent with each other when applied to the same period of time; since in the one action the plaintiff treats the defendant as a tenant, and in the other as a trespasser. (p) When, however, a tenant holds over after the expiration of the landlord's notice to quit, the landlord, after a recovery in ejectment, may waive his action for mesne profits, and maintain debt upon the 4 Geo. II. c. 28. against the tenant for double the yearly value of the premises during the time the tenant so holds over: for the double value is given by way of penalty and not as rent.(q) The action for mesne profits may be brought pending a writ of error in ejectment, and the plaintiff may proceed to ascertain his damages, (n) Reev. E. L. 4 vol. 169. (0) Goodtitle v. North, Doug. 584. Doe, d. Cheney, v. Batten, Cowp. 243. (p) Birch v. Wright, 1T. R. 378. (q) Timmings v. Rowlison, Burr. 1603. It is not yet settled whether, when the eject ment is founded upon a notice to quit given by the tenant, the landlord is entitled to maintain debt upon the 11 Geo. II. c. 19. for double rent, but it seems the better opinion that he is not. Ante, 143. [3] An action of trespass is a proper mode of recovering mesne profits after a recovery in Ejectment under the acts of 21st March, 1806, and 13th April, 1807, [Pennsylvania.] Osbourn vs. Osbourn, 11 Serg. & R. Rep. 55. There is nothing in the action of Ejectment by writ under these Acts of Assembly, which varies the consequences of a recovery from those of the Common Law, except where expressly declared by the Legislature. Ibid. It seems, that if the plaintiff do not seek to recover damages for a time anterior to the service of the writ of Ejectment, the recovery in Ejectment is conclusive, and estops the defendant; but if he do, he must show his title, and the possession of the defendant. Ibid. and to sign his judgment;[1] but the Court will stay execution until the writ of error is determined.(r) The action is bailable or not, at the discretion of the Court, or judge, and when an order for bail is made, the recognizance is usually taken in two years value of the premises, but this is also discretionary.(s) *The lessor of the plaintiff in the antecedent action of eject- [ *330 ] ment, is of course the person concerned in interest, but he may bring his action for mesne profits either in his own name, or that of his nominal lessee. (t) The former, however, is the more advantageous method; as he may then, upon proper proofs, recover damages for the rents and profits received by the defendant, anterior to the time of the demise in the ejectment, [1] which cannot be done in an action at the suit of the nominal plaintiff, (u) and the Courts will not stay the proceedings until security be given for the costs, which will be done when the action for mesne profits is brought in the name of such nominal lessee. (v) [2] (r) Harris v. Allen, Cas. Prac. C. P. 46. Donford v. Ellis, 12 Mod. 138. (8) Hunt v. Hudson, Barn 85. 1 Sell. Prac. 36. (t) It may here be incidentally observed, that when the ancient practice is resorted to, and the plaintiff in the ejectment is a real person, the Court will not permit him to re- [1] It is not necessary to enter up a formal judgment in Ejectment, to entitle the plaintiff to bring trespass for the Mesne Profits. Murphy vs. Guion's Ex'rs. 1 Nor. Car. Law Repos. 95. Where a defendant in Ejectment, who has been evicted by Habere Facias Possessionem, is afterwards restored to possession by writ of restitu tion, he is liable to an action of Mesne Profits, from the original eviction, if the writ of restitution is quashed. Trabue & Al. vs. Kellar, 3 Marsh. Rep. (Ky.) 518. [1] The general rule in trespass for mesne profits is, that the plaintiff shall recover for such time as he can prove the defendant to have been in possession, provided he does not go back beyond six years, in which case the Statute of Limitations may be pleaded. Hare vs. Furey, 3 Yeates' Rep. 13. In trespass for Mesne Profits, after recovery in Ejectment, the plaintiff cannot give evidence of the annual value of the premises beyond the time of the lease, mentioned in the declaration in Ejectment. Shotwell vs. Boehm, 1 Dall. Rep. 172. [2] Where the action for Mesne Profits is brought in the name of the It was once, indeed, doubted whether this action could be maintained in the name of the plaintiff in the ejectment, after a judgment by default against the casual ejector, because, being a possessory action, an entry must be either proved or admitted, neither of which, it was argued, could in such case be done; but it is now settled, that there is no distinction between a judgment in ejectment upon a verdict and one by default, [3] the right of the claimant being in the one case tried and determined, and in the other confessed.(w) A tenant in common, who has recovered in ejectment, may maintain an action for mesne profits against his companion.(x)[4] [ #331 ] *As the action for mesne profits is an action of trespass, it cannot be maintained against executors or administrators, for the profits accruing during the lifetime of the testator or intestate; nor will a court of equity interfere to enforce the payment of them against personal representatives, when the lessor has been deprived of his legal remedy by the mere accident of the defendant's death. But, where the lessor was delayed from recovering in ejectment by a rule of the (u) Aslin v. Packer, Burr. 665. Jeffries v. Dyson, Stran. 960. (x) Goodtitle v. Tombs, 3 Wils. 118. Cultiag v. Derby, W. Black. 1077. nominal plaintiff in Ejectment, the Court will stay proceedings on his part till security for costs be filed. Jackson vs. Par, 4 Cowen's Rep. 147. [3] In trespass for Mesne Profits, consequent on an Ejectment, and judgment by default against the casual ejector, the defendant can set up no matter of defence admissible in the original action; e. g. that he was not in possession of the premises in question. Jackson vs. Combs, 7 Cowen's Rep. 36. SAME POINT, Baron vs. Abeel, 3 Johns. Rep 481. Langendyck & Ux. vs. Burhans, 11 Johns. Rep. 463. After a recovery in Ejectment by default, against the casual ejector, the lessor of the plaintiff may maintain trespass for the Mesne Profits against the tenant, as well for the use of the land as for the costs of the Ejectment. Baron vs. Abeel, 3 Johns. Rep. 481. In an action for Mesne Profits, the confession of entry by the defendant in the Ejectment, is sufficient to enable the plaintiff to recover; Aliter, when the judgment in Ejectment was recovered by default. Brown vs. Galloway, 1 Peters' Circ. Ct. Rep. 291. Lessee of [4] In the case of one joint tenant, or tenant in common, recovering against his partner, it is incumbent on the plaintiff to obtain possession in a reasonable time after judgment in Ejectment, and if he be remiss herein for years, he shall not charge the defendant as a trespasser. Hare vs. Furey, 3 Yeates' Rep. 13. |