Cook Lockwood, for motion. Smith & Fisher, opposed.

PER CURIAM. The notice of appeal is defective because it does not contain an assent on the part of the appellant that if the order is affirmed judgment absolute shall be rendered against him as required by subdivision 1 of section 191 of the Code.

The claim of the respondent is also well founded that the notice of appeal as not served in time. The Code, § 1325, requires that an appeal to this court from an order must be taken within sixty days after service upon the attorney for the appellant of a copy of the order appealed from, and a written notice of the entry thereof. A copy of the order with the written notice was served on the attorneys for the appellant on the 20th day of May, 1885, and the notice of appeal to this court was not filed with the clerk until October 14 and was not served on the respondent's attorney until October 16, nearly five months after the 20th day of May.

But the claim is made for the appellant, that the limitation of time for an appeal from an order specified in section 1325 is not applicable to this case because the appeal could not be taken without leave of the general term, and that such leave could be obtained only at the next general term, which was held in June, 1885. Assuming that the time to appeal might be extended by the circumstance mentioned, the notice of appeal must be served at least within a reasonable time after leave to appeal has been granted. Plaintiff's motion for leave to appeal was July 3. granted at the June general term, and the decision was handed down The appeal should have been taken, at least, within sixty days from that date, and yet it was delayed more than ninety days from that date. It matters not that the appellant did not enter a formal order granting leave to appeal until September 1. He could not extend his time to appeal by delaying to enter an order obtained for himself upon his own motion. It is clear, therefore, that the appeal

was not taken in time and upon both grounds mentioned it should be dismissed, with costs.

All concur.

Appeal dismissed.

WALLACE V. BERDELL.

MESNE PROFITS - REMITTITUR.

December 8, 1885.

The mesne profits to be awarded on the recovery of real estate consist of the net rents after deducting all necessary repairs and taxes, or the net rental value, or the value of the use and occupation. That is, all of which the party from whom the possession has been withheld has been deprived. For this he should be made whole, and he should not suffer from any mismanagement, negligence improvident expenditure by the party in possession. On the other hand, he should not be relieved from any necessary diminution of the gross rents or rental or gross value of the use and occupation to which he would have been

or

value,

himself subjected had he not been disturbed in his possession.

Motion to recall remittitur for correction.

Henry Bacon, for motion. Alfred Taylor, opposed.

RAPALLO, J. The opinion in this case, on the motion for restitu

tion, after holding that the remittitur should be amended by inserting a direction for the immediate restitution of the real estate in question, held that there should be inserted a further direction that the mesne profits of said real estate up to the time of such restitution be ascertained and be paid by Ambrose S. Murray to Charles P. Berdell. See 98 N. Y. 480.

The order entered upon the decision of the motion, instead of following the words of the opinion, provided that the directions should be that "the value of the rents and profits, etc.," be ascertained.

The counsel for Mr. Murray seems to be apprehensive that this deviation from the language of the opinion may subject his client to liability for the gross rents, or rental value of the property, without any allowance for amounts paid by him for taxes and necessary repairs, etc., and he now moves for a recall of the remittitur for the purpose of making the direction conform to the language of the opinion.

The intention of the court was to provide for the same compensation to the defendant for withholding from him the possession of his real estate to which he would have been entitled on recovering the same in an action of ejectment, and we see no difference in substance or effect between the language of the opinion and that inserted in the order.

Whatever uncertainty there may have been in former times as to the rule of damages in an action for mesne profits has been removed by the provisions of the Revised Statutes and of the Code of Civil Procedure, and the decisions thereon.

At common law the action for mesne profits, after recovery in ejectment, was in the form of an action of trespass, and although the general rule was that the plaintiff was entitled to recover in such an action the annual value of the land, it was held in some cases that he was not confined to that, and it was said by the court in Goodtitle v. Tombs, 3 Wilson, 118: "The plaintiff is not confined in this case to the very mesne profits only, but he may recover for his trouble. I have known four times the value of the mesne profits given by a jury on this sort of action of trespass. If it were not so sometimes complete justice could not be done to the party injured."

In Jackson v. Loomis, 4 Cow. 168, which was an action of trespass for mesne profits after a recovery in ejectment, it was held that a defendant whose possession was bona fide was entitled to be allowed in mitigation of damages the value of permanent improvements beneficial to the freehold made in good faith. The court, by SAVAGE, Ch. J., after stating that it could find no case in point either in this country or in England, cited in support of its decision from the opinion of KENT, J., in the court of errors, in Murray v. Gouverneur, 2 Johns. Cas. 441, "as to the sum expended for repairs, it may be left for liquidation in an action for mesne profits, if the respondents should think proper to sue for the rents and profits. The action for mesne profits is a liberal and equitable one, and will allow of every kind of equitable defense." The Revised Statutes-2 R. S. 310, § 44 et seq.substitute in place of the action of trespass for mesne profits, a suggestion to be entered on the record of the judgment in ejectment,

and direct that such suggestion be in the form in use for a declaration in an action for use and occupation. Section 48 requires the plaintiff to prove on the trial of the issue to be framed on such suggestion, the value of the mesne profits during the time for which the plaintiff is entitled to recover, and by section 49, allowances are directed to be made for permanent improvements and for the value of their use.

In Woodhull v. Rosenthal, 61 N. Y. 394, the rule of damages is stated by DWIGHT, Com'r, to be the rental value of the premises recovered, and the whole subject is provided for by the Code of Civil Procedure which provides § 1496 that in an action to recover real property or the possession thereof, the plaintiff may demand in his complaint, and in a proper case recover damages for withholding the property, and § 1497-that "those damages include the rents and profits or the value of the use and occupation of the property where either can be legally recovered.” And section 1531 uses the same language as to the amount of damages allowed in ejectment, viz.: "The rents and profits, or the value of the use and occupation of the real property recovered," so this may be regarded as the legislative definition of the ancient technical term "mesne profits" used in the opinion. The term "value of the rents," employed in the order, does not essentially depart from this definition.

It would be manifestly unjust to confine the owner of the property withheld from him to the rents actually received by the party required to make restitution. The owner should have either those rents, or the rental value, as may be just under the circumstances. In either case, payments necessarily made for taxes and ordinary repairs would be involved in ascertaining the rents received or the rental value.

The mesne profits consist of the net rents after deducting all necessary repairs and taxes, or the net rental value, or the value of the use and Occupation. That is, all of which the party from whom the possession has been withheld has been deprived. For this he should be made whole, and he should not suffer from any mismanagement, negligence or improvident expenditure by the party in possession. On the other hand, he should not be relieved from any necessary diminution of the gross rents or rental value, or gross value of the use and Occupation to which he would have been himself subjected had he not

been disturbed in his possession.

or might with reasonable diligence have derived from the property, The amount justly chargeable for the rents which the owner derived and the amount of the expenditures which have been properly made, and which the owner would have been obliged to make had he remained in possession, are matters to be determined by the referee.

The order contains a further provision which was not contained in the opinion, viz.: That the restitution and payment ordered be without prejudice to the right of Charles P. Berdell to commence and maintain any suit or proceeding for waste or injury to the property, etc. This provision determines no question in relation to any such action, but leaves the parties to their legal rights, whatever they may be. That, under certain circumstances, such an action may be brought after recovery in ejectment was decided by the court of errors in Dewey v.

VOL. III.-42

Osborn, 4 Cow. 329. The provision in the order was perhaps superfluous, as no such damages could have been recovered in the proceeding for restitution. It was not intended to deprive Mr. Berdell of such right of action, if he had any, and we see no occasion for amending the order in that respect.

The motion should be denied, without costs.

All concur.

Motion denied.

SUPREME COURT OF PENNSYLVANIA.

DUNHAM v. HAGGERTY.

October 26, 1885.

COAL MINING Right CONSTRUCTION OF ARTICLE ONE MAKING A STATEMENT OF WHAT HE HAS DONE AND PAYING ACCORDINGLY-ONUS PROBANDI. A. sold to B. the right to mine coal in a certain tract of land, B. to pay a stipulated sum per ton of "screened coal" mined. Held, that by "screened coal was meant such coal as would pass over the customary screens in general use by operators of like coal mines in the region where the particular mine was situate.

B. mined, screened and weighed and from time to time paid A., taking from him receipts in accordance with his own statements. Held, that the transaction was not an ordinary case of mutual settlement of accounts, but of B. making a statement of what he had done and paying accordingly, and if it be shown that his statements were false, the burden would be cast upon him to show that A. knew the real facts when he received the statements and gave the receipts. Error to common pleas of Mercer county.

October 7, 1871, William Haggerty's heirs sold to Joseph McCleery and Warren B. Dunham all the coal in a certain tract of land, with all the necessary mining rights and privileges; the grantees were to search for coal within nine months, and if a basin in quantity and of quality sufficient to justify mining should be found, they were to pay the grantors $500 at the end of that period, and to mine not less than two thousand tons the first year thereafter or pay $500, and not less than four thousand tons during the second year or pay $1,000, such payments to apply on coal thereafter mined; and they further covenanted to pay twenty-five cents for each ton of screened coal mined.

Previous to the year 1869, at some of the neighboring mines, two classes of coal were made; one consisted of what passed over a large screen, the other consisted of what passed through the large and over a smaller screen, and this was generally known as "nut coal." After 1869 but the former kind of coal was made in the neighborhood, and what passed through the screen was known as slack.

After the discovery of coal and before mining began, the defendants made was begun, furnished the plaintiffs with monthly statements of the Screened coal mined and made half-yearly settlements and payments as being for payment on account, but generally they were in full and in

three hundred thirteen and 11-100 dollars, being balance due in full of Received, Sharon, Pa., April 18, 1883, of Dunham, Roberts & Co., royalty on coal mined to January 1, 1883, from lands of the heirs of William Haggerty, late of Hickory township, deceased, under a lease or contract from Sarah Haggerty, guardian, and John Gumfory, Nancy Gunfory, James H. Haggerty, Samuel Philips, Jr., Lina Phillips, Wm. F. Gaylord and Viola Gaylord, to Joseph McCleery and W. B. Dunham, dated October 7, A. D. 1871, said land being described in

said lease."