Cooch v. Geery

Headnote

lease for mesne profits evidence may be given of injury to the premises, if specially llledged in the declaration.

lof of re-entry not necessary where the defendant was a party to the ejectment, and jntered into the common consent rule.

ction on the case for mesne profits, with a count in trespass,

for injury to the premises. Pleas, not guilty; accord and satisfaz tion; release and justification. Issues.

There had been a recovery in ejectment against this same defendant.

The narr. counted for breaking and entering two messuages, two dwellings, &c., &c., twenty acres, &c., &c., “and ejected, expelled put out and amoved the said plaintiff from his possession and occupation thereof, and kept and continued him so expelled and amoved to wit, &c., and during that time took and had and received to the use of him the said defendant, all the issues and profits of the saic tenements, being of great value, to wit: $500; and also during tha time pulled down a certain building of the value of $500, then or said premises, and carried off the materials of the building so pullec down, and converted the same to his own use; whereby the saic plaintiff, during, &c., not only lost the issues and profits of the sai tenements, but was deprived, &c., &c.

The plaintiff offered evidence of injury to the property in takin; down and removing houses since the recovery in ejectment. Thi was objected to.

By the Court. — This is an action of trespass in form as well as e; feet, and we do not see why the plaintiff should not be permitted t| give in evidence any act of trespass of which he has given the d< fendant notice by his declaration. And such is the authority of ti cases. (2 Sctitnd PI. & Ev. 670; Adams on Eject. 337.) There ca| be no reason for turning the party round to another action of tre, pass.

Evidence admitted.

moved a nonsuit, on the ground that theJ was no re-entry proved. ( 2 Doug. 486 .)