Mitchell v. Mitchell

The opinion of the court was delivered by Le Grand, C. J., who, after stating the case as above, proceeded: We think the evidence was properly rejected by the county court. This is an action for mesne profits, and, although we have made the most diligent search, we have been unable to find a single reported case, in which such an action has been maintained before a recovery in ejectment. The labors of the learned counsel for the appellant, so far as this court is informed, were attended, in this particular, with no better success. In all the cases to which we have had reference, in which an action for mesne profits was maintained, it appeared, there had been a previous recovery in ejectment, and in the elementary treatises the action is declared to be, “consequential to the recovery in ejectment.” 2 Stephens Nisi Prius, 1489.

The origin of this action is thus explained in Adams on Ejectment, 379: “Whilst,” says that writer, “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 as upon the introduction of the modern system, the proceedings became altogether fictitious, and the