BOYD'S LESSEE v. COWAN
4 U.S. 138

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U.S. Supreme Court

BOYD'S LESSEE v. COWAN, 4 U.S. 138 (1794)

4 U.S. 138 (Dall.)

Boyd's Lessee
v.
Cowan.

Supreme Court of Pennsylvania.

April Term, 1794

EJECTMENT, tried at West-Chester, in Chester county, on the 22d of October 1793. The jury gave a verdict, in favour of the plaintiff, for the premises mentioned in the declaration; and, also, for 41l. 13s. 4d. damages, being the value of the mesne profits; subject to the opinion of the Court on a point reserved; to wit: Whether the mesne profits can be recovered in an ejectment, by way of damages? After argument, when the Judges were about to deliver their opinions, the parties made an amicable settlement of their dispute: but the general question being of importance, no excuse will be offered, for inserting here, the opinion prepared by the Chief Justice.

M'KEAN, Chief Justice.

In delivering my sentiments upon the point reserved in this cause, I shall first consider the objections made to the recovery of the mesne profits, in the action of ejectment; and then, the reasons in favour of such a recovery.

1st. The leading objection (and which at first sight appears the strongest) is, that the action of trespass for the mesne profits, is always laid with a continuando; thus differing from the form of the action of ejectment, which alleges only a single act of entry and ouster. For which 3 Blackst. 205. 3 Wils. 118. 2 Bac. Abr. 181. and Runnington, 4, 5. 44. and 164. have been cited.

2d. Special bail can be required in the action of trespass for the mesne profits, but not in the ejectment. 2 Barns, 59.

3d. If damages are given for the mesne profits in the ejectment, and an action of trespass shall afterwards be brought for the same cause, the former cannot be pleaded in bar.

4th. The law has been against this practice, and cannot now be altered except by the legislature.

Page 4 U.S. 138, 139

5th. It would be inconvenient to allow the practice; because titles are frequently so complicated and difficult, as sufficiently to command the whole attention of the jury; and it would be too burthensome to impose upon them, also, the ascertaining the value of the mesne profits by one verdict.

This is the amount of all that has been, or, I believe, that can be urged against the measure. My answer to the first objection is, that I agree that the form of the writ and declaration in an action of trespass for the mesne profits contains a continuando of the trespass, and that it cannot be changed but by positive law. This prevents the necessity of several actions of trespass, for every several trespass; and unless it is so laid, it no where appearing on the record that the trespass was continued for a certain time, it must be taken by the Court and jury to be for a single act, and damages can be given for nothing more. But in an ejectment there is no arrest, no writ, and the form of the charge in the declaration in the King's Bench in England is, 'that the defendant entered into the tenements, &c. of the plaintiff with force and arms, &c. and ejected, expelled, and removed him; and him being so ejected, expelled and removed, the defendant hath hitherto withheld from him, and still doth withhold, the possession, &c.' Jacob's Law Dictionary, title Ejectment, 1 vol. Attorney's Practice in K. B. page 424. 440. Lill. Ent. 192. 205. Besides, it sufficiently appears on the whole record in the ejectment, that the plaintiff was in possession, that the defendant ousted him on a certain day, and detained the possession until the trial; so that the action is not for a single act of trespass; and, therefore, the jury may well give damages for the whole time the wrong continued. At all events, the precedent may be so made, in the Common Pleas, as well as in the Supreme Court.

With respect to the second objection, that special bail can be required in the action of trespass for the mesne profits, but not in the ejectment: it is true, that, upon affidavit, the Court of Common Pleas in England has ruled special bail in the action of trespass for mesne profits, though it has been held otherwise in the King's Bench. Register of Common Pleas, 62. However, there appears to be no weight in this, when it is considered, that this action is brought after the ejectment is determined, so that the plaintiff is in no worse condition (although he has no special bail in the ejectment) on that account, but rather a better; for, if the value of the mesne profits is recovered in the ejectment, he may have a fieri facias for them immediately. If, too, the defendant should, before execution executed, withdraw his person and effects from the jurisdiction of the Court, the plaintiff would still be left in a better situation; for, if he pursues the defendant, he may arrest him in an action of debt on the judgment in any of the United States; whereas, in such a case, no action of trespass for the mesne profits could be brought (it being a local action) in a foreign country, and bail demanded. [4 U.S. 138, 140]


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