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against the defendant for having taken the mesne profits for a longer period than is allowed by the statute of limitations, the defendant may plead the statute of limitations, that is to say, not guilty within the period fixed by the statute before the commencement of the action, and thereby protect himself from all but the statutory period. Subject to the defense founded on the statute of limitations, the party entitled to the possession of real property, and of chattels real, may recover the mesne profits from the time his title accrued. (West v. Hughes, 1 Har. & Johns. R. 574.) But the defendant's plea in the action for mesne profits must in all cases conform to the practice prevailing in the state.

A set-off cannot ordinarily be pleaded to the action for mesne profits. But, where a defendant had made a payment on account of ground rent becoming due subsequently to the day of the demise in the declaration in ejectment, this payment was deducted from the amount of the damages, on the ground that it was an outgoing rent falling due during the time of his occupation, from which he could not exonerate himself, and one which the plaintiff must himself have paid had he been in possession. (Doe v. Hare, 4 Tyr. R..29.) And, in a case where the defendant had a cross claim against the plaintiff for money expended on the premises, a court of equity granted an injunction to restrain the proceedings at law, because of the absence of the right of set-off in the action for mesne profits. (Cawdor v. Lewis, 1 Younge & Collyer's R. 427.)

It may be affirmed that the defendant in the action for mesne profits will not be permitted to set up any defense which would have been a bar to the action of ejectment. He cannot set up a title in bar of the action, even if he has a better one than the plaintiff. (Benson v. Matsdorf, 2 Johns. R. 369. Baron v. Abeel, 3 ib. 481. Jackson v. Randall, 11 ib. 405. Langendyck v. Burhans, Ib. 461.) And yet it has been held that the action for mesne profits is an equitable one, and will allow of every kind of equitable defense. (Murray v. Gouverneur, 2 Johns. Cases, 438.) But whatever matter may be allowed as a defense to the action for mesne profits, must be pleaded in the manner required by the practice of the state, or the same cannot be made available on the trial of the action.

In case of necessity, the pleadings in the action for mesne profits may be amended, and amendments to the pleadings are matters in the discretion of the court. Variances between the writ and

declaration in these cases cannot be taken advantage of after plea pleaded; and it has been questioned whether, by the modern practice, such variances can be taken advantage of at all. (Chirac v. Reinicker, 11 Wheat. R. 280.)

In relation to the evidence in the action for mesne profits, it may be affirmed that, where the plaintiff seeks to recover the mesne profits which accrued antecedently to the day of the demise in the declaration in the ejectment, he must produce the regular proof of his title or right to the possession of the premises, and the judgment in ejectment is not admissible in evidence for him. He must also, it appears, in such a case, prove an entry upon the lands, though some doubt seems to exist as to what proof of entry will be sufficient. In general, a recovery in ejectment, like other judgments, binds only parties and privies. It is conclusive evidence in an action for mesne profits against the tenant in possession, when he has been duly served with a notice in ejectment, whether he appears, and takes upon himself the defense, or suffers judgment to go by default against the casual ejector. The reason is, that in the first case he is the real party on the record; in the last he is considered as substantially the defendant, and the judg ment by default, as a confession of the title set up in the ejectment. That is to say, this is the rule where the plaintiff proceeds only for the recovery of the mesne profits accruing subsequently to the day of the demise in the declaration. (Dewey v. Osborn, 4 Cow. R. 329. Marshall v. Dupey, 4 Marsh. N. S. R. 389. Poston v. Jones, 2 Dev. & Batt. R. 294. Whittington v. Christian, 2 Rand. R. 353. Aslin v. Parkin, 2 Burr. R. 665, 668. But vide Vooght v. Winch, 2 Barn. & Ald. R. 662. Doe v. Huddart, 4 Dowl. P. C. 437. Same Case, 5 Tyr. R. 846.)

It has sometimes been held that, upon a plea to the action for mesne profits that the premises were not the premises of the plaintiff, the defendant was permitted to prove title in himself, notwithstanding the proof of the judgment in ejectment against him. But it seems to be well settled now, that in such case the tenant is concluded by the judgment in ejectment, and cannot controvert the title. The rule is otherwise, however, when the action for mesne profits is brought against third persons, that is, against persons who are neither parties nor privies to the record. In such case the judgment in ejectment is not conclusive, and the defendant may controvert the plaintiff's title at large. Indeed, it

seems doubtful whether the record is even admissible as evidence against strangers on the question of title. (Leland v. Tousey, 6 Hill's R. 328.) It seems, however, that the record of the judgment in ejectment in favor of the plaintiff is admissible in evidence in all cases, and against all parties, in the action for mesne profits, for the purpose of proving the possession of the plaintiff. The plaintiff may certainly prove his possession connected with his title by any sufficient evidence in pais; and, if his possession has been under a judgment of law, he is entitled to establish it by introducing the record of the recovery, and an executed writ of possession under it. (Chirac v. Reinicker, 11 Wheat. R. 280.) In the action for mesne profits, founded on a recovery by default against the casual ejector, it is in general necessary to show a writ of possession executed. But this is not the rule when the tenant voluntarily abandons the possession, and the plaintiff in the ejectment enters, or when the plaintiff in ejectment has been let into possession by the defendant. And when the judgment in ejectment is against the tenant, who comes in and defends, the judg ment is sufficient evidence in the action for mesne profits, without any writ of possession executed. The tenant in such case cannot controvert the plaintiff's possession any more than his title, because his possession is part of his title; for the plaintiff, to entitle him to recover in an ejectment, must ordinarily show a possessory right not barred by the statute of limitations. (Aslin v. Parkin, 2 Burr. R. 663, 668. Jackson v. Combs, 7 Cow. R. 36. Calvart v. Horsfall, 4 Esp. R. 167.)

It has been held in the state of Maryland, that, in an action of trespass brought in the name of the lessor of the plaintiff against the tenant in possession for mesne profits from the time of the demise, it is not necessary for the plaintiff to prove an entry or actual possession in him after the recovery in ejectment. (Shipley v. Alexander, 3 Har. & Johns. R. 84.) Doubtless the necessary facts would be established in such a case by the record of the recovery in ejectment, according to the cases above cited.

The judgment in the preceding action of ejectment is also evidence in the action for mesne profits against a party coming into possession and occupying the premises under the defendant in the ejectment, although not himself included in it; he is in such case a privy to the record. (Doe v. Whitcomb, 8 Bing. R. 46.) And the judgment in ejectment is in like manner evidence when the

action for mesne profits is brought against a party who has not been in the actual occupation, provided it be proved that the defendant in ejectment was his tenant, and that the relation of landlord and tenant subsisted between them. (Doe v. Harlow, 12 Adolph. & Ell. R. 42, note d.) But the relationship of landlord and tenant in such a case must be proved by the production of the agreement between the parties, if the tenancy has not been created by parol. (Doe v. Harvey, 8 Bing. R. 239.)

The judgment in ejectment, like all others, only concludes the parties as to the subject-matter of it. In an action for mesne profits, therefore, such judgment proves nothing at all beyond the time laid in the demise, because beyond that time the plaintiff has alleged no title, nor could be put to prove any. And, as to the length of time the tenant has occupied, the judgment proves nothing; nor as to the value. Therefore it must be proved,

aliunde the record, how long the defendant enjoyed the premises recovered, and what the value was, and it must appear that it is within the time laid in the demise. (Aslin v. Parkin, 2 Burr. R. 665, 668. Dodwell v. Gibbs, 2 Carr. & Pa. R. 615.)

Where an action of ejectment is brought against the actual occupants of the premises, and a judgment is recovered therein against the defendants, and an action is subsequently brought by the plaintiffs in the ejectment suit, against the persons under whom such occupants held the premises, for the recovery of the mesne profits, such plaintiffs, to entitle themselves to recover in the latter action, must show, first, that they had, at the time the trespasses mentioned in the declaration were committed, the actual possession of the premises, or a title thereto; second, that the defendants entered upon the possession of the plaintiffs, and expelled them, and kept them out of possession; third, that the defendants, by their agents or tenants, received the rents, issues and profits while the plaintiffs were kept out of possession; fourth, that the plaintiffs had, before the commencement of the action for mesne profits, reentered upon the premises, and regained possession thereof; and, finally, the part of the premises held by the defendants' authority, and the value thereof. If the evidence does not establish each of these facts, the plaintiffs should be nonsuited.

The judgment record in an action of ejectment against the actual occupants is no evidence of the plaintiff's title or possession, in an action for mesne profits brought against the persons

of whom such occupants held the premises, where such persons do not claim under the defendants in the ejectment suit. Such record is no evidence against any one other than the defendants named therein, or persons claiming under them by title accruing after the commencement of the ejectment suit. The fact that persons who are not parties to an ejectment suit undertake the defense of such suit, and fail therein, will not furnish the slightest evidence of the plaintiff's title or possession in an action against such persons for mesne profits. (Ainslie v. The Mayor, etc., of New York, 1 Barb. R. 158. Vide Poston v. Henry, 11 Ired. R. 301.)

A judgment in ejectment against a wife is no evidence in an action for mesne profits against the husband and wife, for the wife's confession of a trespass committed by her cannot be given in evidence to affect the husband in an action in which he is liable for the damages and costs. (Denn v. White, 7 Term R. 112.)

The amount of the plaintiff's damages must also be proved in the action for mesne profits, and the jury are not confined in their verdict to the mere rent of the premises recovered in the ejectment, and which were enjoyed by the defendant. Although the action is said to be brought to recover the rents and profits of the estate, the jury may give such extra damages as they may think the particular circumstances of the case may demand. (Goodtitle v. Tombs, 3 Wils. R. 118, 121.) But, in the action of trespass for mesne profits against a bona fide purchaser, he will be allowed against the plaintiff, in mitigation of damages, the value of permanent improvements made in good faith, to the extent of the rents and profits claimed by the plaintiff. There is no reason, in general, why the owner of land should be compelled to pay for improvements which he neither directed nor desired, as a condition on which he is to gain possession of his property. But trespass for mesne profits is an equitable action, intended to do justice to the plaintiff by putting him in as good situation as he would have held, provided he had not been dispossessed. If waste has been committed, the damages may be increased accordingly, be yond the measure of the rent, to an extent which will make him whole. And, on the other hand, if improvements åre made of a permanent and beneficial nature, and the defendant entered in good faith, the value of such improvements should be deducted from the damages. In such a case it is very hard for the defendant to lose both land and improvements; and if the plaintiff is not

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