OF

PENNSYLVANIA.

January Term 1794.

Schenkhouse versus Gibbs et al. (1)

ASE. The facts, on which the present cause depended, will be found in the report of Ingraham, indorsee, v. Gibbs et al. 2 Dall. Rep. 134.; and the note annexed to it. Ibid. 136. The following charge was delivered to the jury.

By the COURT: We are of opinion, that the mode of remitting by a general bill, payable to one merchant, with separate drafts in favour of each of the other merchants, who are interested in the amount of the bill, is a good and lawful execution of the trust and authority of a factor, employed by several distinct and unconnected merchants, resident abroad. No inconvenience can arise from the transaction, if all the parties are apprised of the distributive appropriation. It is essential, however, to such a remittance, that notice should be given to the parties. In the present casc, there is no proof of express notice to the plaintiff; but this may be supplied by facts, which raise a fair presumption of the plaintiff's knowledge on the subject: and his delay in protesting and returning the bill, together with the draft on Portener, sent directly by the defendants to him, are facts of that description.

It only remains to observe, that Portencr, the general trustee, could give no preference to any claimant on the fund; and that in case of a partial loss, it must have been borne, as a general average, by all the concerned.

Verdict for the defendants.

(1) An outline of this case was annexed in a note to the case of Ingraham v. Gibbs et al. 2 Dall. Rep. 134.; but it was thought of some importance to add the opinion expressed by the Court on the trial.

M'Ewen versus Gibbs et al.

ASE, on a parol acceptance of a bill of exchange. The plaintiff, having become a certificated bankrupt, was called as a witness to prove the acceptance. Dallas objected to his competency, on the ground of the witness's liability for costs; and his interest in augmenting the estate surrendered under his

commission.

But it appearing, that the assignees carried on the suit, and had entered into security for costs, the COURT (after the plainsiff had released his interest at the bar) directed him to be sworn, upon the authority of Scott v. M'Glenachan.

1794.

OF

PENNSYLVANIA.

April Term 1794.

Boyd's Lessee versus Cowan.

JECTMENT, tried at West-Chester, in Chester county, ont

the 22d of October 1793. The jury gave a verdict, in favour of the plaintiff, for the premises mentioned in the declaration; and, also, for 41/. 139. 4d. damages, being the value of the mesne profits; subject to the opinion of the Court on a point reserved; to wit: Whether the mesne profits can be recovered in an ejectment, by way of damages? After argument, when the Judges were about to deliver their opinions, the parties made an amicable settlement of their dispute: but the general question being of importance, no excuse will be offered, for inserting here, the opinion prepared by the Chief Justice.

M'KEAN, Chief Justice. In delivering my sentiments upon the point reserved in this cause, I shall first consider the objections made to the recovery of the mesne profits, in the action of ejectment; and then, the reasons in favour of such a recovery.

1st. The leading objection (and which at first sight appears the strongest) is, that the action of trespass for the mesne profits, is always laid with a continuando; thus differing from the form of the action of ejectment, which alleges only a single act of entry and ouster. For which 3 Blackst. 205. 3 Wils. 118. 2 Bac. Abr. 181. and Runnington, 4, 5. 44. and 164. have been cited.

2d. Special bail can be required in the action of trespass for the mesne profits, but not in the ejectment. 2 Barns, 59.

3d. If damages are given for the mesne profits in the ejectment, and an action of trespass shall afterwards be brought for the same cause, the former cannot be pleaded in bar.

4th. The law has been against this practice, and cannot now be altered except by the legislature.

5th. It

5th. It would be inconvenient to allow the practice; because 1794. titles are frequently so complicated and difficult, as sufficiently to command the whole attention of the jury; and it would be too burthensome to impose upon them, also, the ascertaining the value of the mesne profits by one verdict.

This is the amount of all that has been, or, I believe, that can be urged against the measure. My answer to the first objection is. that I agree that the form of the writ and declaration in an action of trespass for the mesne profits contains a continuando of the trespass, and that it cannot be changed but by positive law. This prevents the necessity of several actions of trespass, for every several trespass; and unless it is so laid, it no where appearing on the record that the trespass was continued for a certain time, it must be taken by the Court and jury to be for a single act, and damages can be given for nothing more. But in an ejectment there is no arrest, no writ, and the form of the charge in the declaration in the King's Bench in England is, " that the defendant en. "tered into the tenements, &c. of the plaintiff with force and 66 arms, &c. and ejected, expelled, and removed him; and him "being so ejected, expelled and removed, the defendant hath "hitherto withheld from him, and still doth withhold, the possession, &c." Jacob's Law Dictionary, title Ejectment, 1 vol. Attorney's Practice in K. B. page 424. 440. Lill. Ent. 192. 205. Besides, it sufficiently appears on the whole record in the ejectment, that the plaintiff was in possession, that the defendant ousted him on a certain day, and detained the possession until the trial; so that the action is not for a single act of trespass; and, therefore, the jury may well give damages for the whole time the wrong continued. At all events, the precedent may be so made, in the Common Pleas, as well as in the Supreme Court. With respect to the second objection, that special bail can be required in the action of trespass for the mesne profits, but not in the ejectment: it is true, that, upon affidavit, the Court of Common Pleas in England has ruled special bail in the action of trespass for mesne profits, though it has been held otherwise in the King's Bench. Register of Common Pleas, 62. However, there appears to be no weight in this, when it is considered, that this action is brought after the ejectment is determined, so that the plaintiff is in no worse condition (although he has no special bail in the ejectment) on that account, but rather a better; for, if the value of the mesne profits is recovered in the ejectment, he may have a fieri facias for them immediately. If, too, the defendant should, before execution executed, withdraw his person and ef fects from the jurisdiction of the Court, the plaintiff would still be left in a better situation; for, if he pursues the defendant, he may arrest him in an action of debt on the judgment in any of the United States; whereas, in such a case, no action of trespass for the mesne profits could be brought (it being a local action) in a foreign country, and bail demanded.

1794.

In answer to the third, I will only mention, that nothing ap pears plainer, than that the defendant may plead the recovery of the damages in the ejectment; with an averment that they were given for the mesne profits, in bar of the action of trespass. 1 Leon. 313. Ca. 437. 3 Leon. 194. Ca. 242.

The fourth objection, that this Court cannot alter the law, is correct beyond controversy; but there is no positive law respecting this action, or directing that the mesne profits shall not be recovered in it, as well as possession; and the Court can alter the practice, and institute any rules in an action of ejectment, which they may deem beneficial, or for the furtherance of justice, without legislative aid.

An ejectment is the creature of Westminster Hall, and has been gradually moulded into a course of practice by the rules of the Courts. It is in form a fiction; in substance, an action invented for the speedy trial of titles to the possession of lands. For a long time, damages only could be recovered in this action, the measure of which was always the mesne profits. 3 Wils. 118. 120. In the 14 H. 7., and not before, the term or thing as well as damages were allowed to be recovered. At first there was a lease really sealed on the land, and the action was against the real tenant in possession. It came in place of the assize, in which action the possession, as well as the mesne profits, was recoverable. Afterwards, casual ejectors were set up; and notice ordered to be given to the tenant in possession. Then the new prac tice was invented by Chief Justice Rolles. Not very long ago (in 1751) it was ruled in the Common Pleas, that if after a recovery in ejectment against the defendant, he should bring a writ of error, he should give bail to the plaintiff in a sum equal to the value of at least two years mesne profits. 2 Barn's Notes, 86. Many other alterations have taken place; and the same authority which brought it thus far, may certainly carry it to a higher degree of perfection, as experience happens to show inconveniences, or defects. Being under the controul of the Court, it may be modelled so as to answer, in the best manner, every end of justice and convenience. 3 Burr. 1292. 1295. 3 Blackst. Com. 205. 2 Burr. 660. Besides, by the 6th section of the act of assembly, intitled, "An act for the more speedy and effectual administra"tion of justice," it is declared and enacted, that "the justices "of the Supreme Court have full power and authority to make "such rules for the regulating the practice of the said Court, "and expediting the determination of suits, as they in their dis"cretion shall judge necessary." Of the power of the Court, therefore, in this particular, I entertain no doubt.

I shall now, briefly, consider the argumentum ab inconvententi; which refers but to a single instance; to wit, the difficulty the jury may labour under, in deciding on the titles of the parties to the possession, and, at the same time, in fixing the value

of