Jackson ex dem. Howell v. Delancy — 5 Cow. 33

Majority

p. 33

Jackson ex dem. Howell against Delancy.

Headnote

A writ of error by the defendant in ejectment, will not protect him against an immediate action for the mesne profits.

In ejectment, the judgment being for the plaintiff, and a writ of possession executed, at the last term, the defendant moved for and took a rule for leave to turn the case made in this cause into a special verdict, for the purpose of bringing a writ of error; and the rule was also, that, until the writ of error should he determined, no action for the mesne profits should be brought; and now, oil producing a certified copy of the rule; and on notice of a motion for that purpose,

A. Burr, moved to modify the rule of the last term,

so as to permit the plaintiff to proceed for the mesne profits;

p. 34

and he cited Roe, ex dem. Perry, v. Jones, (1 H. Bl. 34, Adams on Ejectment, 329.

R. Bogardus, contra.

It appears by the authorities cited, to he well settled, that a writ of error will not stay an action for mesne profits. No particular circumstances exist to take this case out of the general rule. We think the modification applied for should be allowed.^[1]

Motion granted.

(a) (a) Donford v. Ellis, (12 Mod. 138, S. P.)