Opinion
Spring Sessions, 1842
Gray, for plaintiff.
Rodney and Wales, for defendant.
ACTION on the case for mesne profits, with a count in trespass, for injury to the premises. Pleas, not guilty; accord and satisfaction; release and justification. Issues.
There had been a recovery in ejectment against this same defendant.
The narr. counted for breaking and entering two messuages, two dwellings, c., c., twenty acres, c., c., "and ejected, expelled, put out and amoved the said plaintiff from his possession and occupation thereof, and kept and continued him so expelled and amoved, to wit, c., and during that time took and had and received to the use of him the said defendant, all the issues and profits of the said tenements, being of great value, to wit: $500; and also during that time pulled down a certain building of the value of $500, then on said premises, and carried off the materials of the building so pulled clown, and converted the same to his own use; whereby the said plaintiff, during, c., not only lost the issues and profits of the said tenements, but was deprived, c., c.
The plaintiff offered evidence of injury to the property in taking down and removing houses since the recovery in ejectment. This was objected to.
By the Court. — This is an action of trespass in form as well as effect, and we do not see why the plaintiff should not be permitted to give in evidence any act of trespass of which he has given the defendant notice by his declaration. And such is the authority of the cases. (2 Sound Pl. Ev. 670; Adams on Eject. 337.) There can be no reason for turning the party round to another action of trespass.
Evidence admitted.Wales, for defendant, moved a nonsuit, on the ground that there was no re-entry proved. (2 Doug. 486.)
The Court refused the motion for a nonsuit, on the ground that proof of re-entry in this case was not necessary, for Geery was a party to the ejectment, and entered into the consent rule. ( Ros. Civ. Ev. 393.)
The plaintiff had a verdict.