Pendergast v. McCaslin

THIS was an action of disseizin. Damages were given for a time subsequent to the commencement of this suit. Of this, the defendant below, the plaintiff in error, complains. We think there was no error in including those [88] damages in the judgment. The plaintiffs below were entitled to them in this, or in another suit which should be brought to recover them. In England, by the statute of 1 Geo. IV., c. 87, landlords recover for the mesne profits up to the day of trial in actions of ejectment, if the defendant remains in possession to that time, Adams on Eject. 380. By our statute upon the action of ejectment, damages for waste and cultivation are charged against the occupying claimant who has made improvements, up to the rendition of the judgment in the ejectment suit; which, of coui'se, when done, bars an action for mesne profits against him. R. S. p. 800, s. 49. And, by sections 20 and 21 of the article in one code regulating the action of disseizin, R. S. p. 794, damages are to be recovered in all cases as in the above sections in regard to occupying claimants. We think this authorizes their recovery up to the rendition of judgment. This practice tends to avoid the expense of a second suit. We see no other point in the case requiring notice. L. Barbour, for the plaintiff. W. Quarles, for the defendants. The judgment is affirmed with costs.