Bailey v. Fairplay

Tilghman C. J. The exception to the charge of the president is that the jury were misled by it, because they were not told, that the record was not evidence of the length of time for which the defendants were in possession, which ought to have been proved by other evidence. It .has also been contended, that the record was not evidence against the defendants at all, because the issue appears to have been joined between the plaintiffs, and John Foulplay the casual ejector. I think there is nothing in the last objection, because it appears that notice of the ejectment was served on all the defendants, that theyall appeared and entered into the commoh rule, that they kll appealed from the Circuit Court to the [454] Supreme Court, and that in the Supreme Court, judgment ~ was entered against all. The omission therefore of striking the name of the casual ejector out of the declaration, and inserting the names of the defendants in the place of it, is not to be regarded. An amendment would have been granted on application to the Court at any time; and viewing the whole record, this Court perceives that judgment was finally entered against the defendants, which is conclusive against them, and would be conclusive even if a writ of error were now depending before us, because we should consider it in the same light as if the error had been amended. As to the possession, the record of the recovery in the ejectment certainly is conclusive evidence of the defendants’ being in possession at the time the ejectment was brought, because unless that had been proved, the plaintiff could not have recovered. In order to recover in ejectment, the plaintiff must prove, first that he had title at the time of the demise laid in his declaration, and secondly that the defendant was in possession at the time the suit was brought; and on proving these two things he is entitled to a verdict. As it is not material to the present question, I will not say positively, whether the plaintiff might not recover on proving that the defendant had been in possession some time before the commencement of the ejectment, and within the time laid in the demise, although not at the time of the action being commenced. But is he bound to prove that the defendant was in possession from the time of the demise? It is contended on the part of the plaintiff that he is. But I cannot understand on what principle this position can be supported. The plaintiff may lay the ouster committed by the defendant at any time he pleases, provided it is after the demise; but he is put to no proof of it. The tenant is obliged to enter a rule whereby he agrees to confess the ouster, before he is permitted to become defendant in the action. But as to the possession, it is enough if the plaintiff proves the defendant to have had it at the time the suit was commenced. So that no inference can be drawn from the recovery in the ejectment as to the length of time for which the defendant has been in possession. Thus the law would seem to be on principle, and we shall find that the authorities are in conformity to it. In Aslin v. Parkin, 2 Burr. 668, Lord Mansfield says in [455] express terms, that “ as to the length of time the defendant “ has occupied, the judgment proves nothing.” And in" 2 Peake’s Evid. 326, it is laid down as settled law, that in an action for mesne profits after a recovery in ejectment, the plaintiff must prove the length of time the defendant has. been'in possession. To this the counsel for the plaintiff oppose what is said by Gould Justice, in Goodtitle v. Tombs 3 Wils. 121. The words are these.- “ It must be taken for “ granted in this case, that there was an actual ouster, and “that the defendant kept him out from the time of the “ demise until the judgment in the-ejectment.” But on examining this case, it will be found that the expressions relied on have no bearing on the point, because there was no question as to the length of time the defendant was in possession. It was an action for recovery of mesne profits after judgment by default in an ejectment against Tombs, who was tenant in common with the lessor of the plaintiff; and the only question submitted to the court was, “ whether one tenant in “ common could maintain this action against the other, to “recover damages for the expulsion and mesne profits.” This is the point then to which the general expressions of Gould are to be applied. As to the length of the defendant’s possession there was no dispute, it must have been either proved or agreed on at the trial. All that the Court had to decide was, whether one tenant in common could recover in this action at all, taking for granted that the defendant had been in possession and received the profits. The same remark will be an explanation of the passages^ cited from Bailer’s Nisi Prius and 3 Black Comm. 205, “ that the judgment is “ conclusive evidence to recover mesne profits from the time “ of the demise.” The meaning is, that it is conclusive as to title, for the whole time laid in the demise. But if the plaintiff would recover the profits beyond the time of the demise, the defendant may put him to prove his title, because the ‘ record only shows that he' recovered the term mentioned in the declaration. But it is objected, that be the law as it may on this point, the charg-e of the judge was not erroneous, because it was silent. This is very true, and it is also true, that in what the judge did say he was correct. But still the charge upon the whole was incorrect; because by stating only part of the law, [456] the jury-were suffered to fall into an error, by which the ’ defendants were injured. The jury-are to receive instructions from the Court. If this instruction is given in such a manner as to mislead them, there is an error which ought to be corrected. The record contains the evidence and the charge to which the defendant’s counsel exempted, and prayed that the charge might be reduced to writing, and hVd according to the act in such case provided. As th.'. rm- Ac charge is on the record, we must now take it, that tbv vhole is open to exception, although if ,the judge had (bought proper, he might have called on the counsel to point out the part to which he objected, and reduced that part only to writing. On the whole it appears to me that there is er- . ror. I am therefore of opinion that the judgment should be reversed, and a venire de novo be awarded. Yeates J. and Bracicenribge J. were of the same opinion. Judgment reversed.