Full text
Graves and others against Joice
Per Woodworth, J.
The defendant being in possession of the M’Kinney farm, entered into the consent rule generally; and there being nothing to narrow this in the
[264] course of the ejectment, the plaintiff recovered to whole. If there is nothing to the contrary in the proceedings in the original action, the consent rule being general, the plaintiff recovers all the land of which the defendant is possessed; and he can recover nothing beyond the possession. It would certainly be violating all precedent to allow of this defence. It was a defence which peculiarly belonged to the action of ejectment. This matter should have been put right at the trial in that action. Nothing is more usual than for the judge to interfere there ; and limit the terms of the verdict to the right as proved in evidence.
Savage, Ch. J.
Neither the Judge nor jury in this action had any thing to do with the maimer of taking possession, or the extent to which it was taken under the writ of possession. To admit either would he to attack the record in a ’collateral way. If you may question the effect of the record as to one half, you may do the same as to three fourths; and the same principle would extend to the whole; and destroy the rule, that in an action for mesne profits the record-is conclusive. It has been well observed by Judge Woodworth, that all this is confinéd to the trial of the ejectment. The general proposition that the action for mesne profits is an equitable action, relied on by the counsel for the defendant, relates to the measure of damages upon the title, as it appears by the record and proceedings in the original cause. It cannot be extended so as to intrench upon, or overthrow that title. That the rule is viewed in this light, will be seen by a case lately before us ; (Jackson v. Loomis, 4 Cowen’s Rep. 168.)
Judgment accordingly, (a)
Footnotes
[(a)] Vid. Aslin v. Parkin, (2 Burr. 668 ;) Van Alen v. Rogers, (1 John. Cas. 283 ;) 1 Phil. Ev. 236, ed. of 1820 ; Bailey v. Fair play, (6 Bin. Rep 450;) Goodtitle v. Tombs, (3 Wils. 118;) Benson and others v. Matsdorf (2 John. Rep. 369.371 ;) Jackson v. Randall, (11 John. Rep. 405 ;) Same v. Stone, (13 id. 447;) Dewey v. Osborn, (4 Cowen’s Rep. 339.)