[Bailey and others v. Fairplay.]

To this charge the defendants tendered a bill of exceptions.

C. Smith and Montgomery for the plaintiffs in error.

The tenant in ejectment is estopped, in an action for the mesne profits, from controverting the plaintiff's title; but the judgment proves nothing as to the length of time the *defendant was in possession, and therefore in all cases the length of his possession must be made out by other [*452 proof. This was the unanimous resolution of the judges in Aslin v. Parkin, 2 Burr. 668; and it is clear that both the judge in his charge, and the jury in their verdict, proceeded upon a different principle. The judge, it is true, only says that the record is conclusive that the defendant was in possession at the time of the service of the declaration; but as there was no evidence of possession but the record, and the question essentially involved the duration of the possession, the judge misled the jury by not qualifying his opinion so as to make it applicable to the question. He gave them at best but a part of the law, and that part calculated to mislead. The jury were misled by it; for without any evidence but the record, they gave the whole value from the date of the demise. The judge, acting up to his own principle, should have directed the jury, that as there was no evidence of the continuance of possession, they ought to find nominal damages only.

But the record was not evidence at all. The issue tried was between the lessee and the casual ejector, and the judgment followed the issue. Of course it was between other parties. As to the appearance and defence, there were none for Le Fevre, and by the evidence in this cause, he never had been in possession for a moment.

Bowie and Hopkins for the defendant in error.

The law as delivered by the judge was strictly right, and he was not called upon to be more particular. But if he had been, he ought to have said, that the judgment was conclusive evidence of possession held by the defendant, from the time of the demise in the declaration. In Goodtitle v. Tombs, 3 Wils. 121, GOULD J. says it must be taken for granted after a judgment in ejectment, that the defendant kept the plaintiff out from the time of the demise. Proof of the judgment in ejectment, and the writ of possession executed, was in his opinion sufficient to warrant a verdict for the mesne profits. The judgment, says Blackstone, is conclusive evidence against the defendant for all profits

[Bailey and others v. Fairplay.]

which have accrued since the date of the demise. 3 Bl. Comm. 205. The plaintiff was bound to prove him in pos*453] session from that *time. 2 Cromp. Prac. 206. The case of Aslin v. Parkin is not inconsistent with this doctrine, because it may be understood of a possession previous to the demise. It is sufficient for us, however, if there is a mere presumption of possession from the commencement of the suit; and certainly it ought to be taken for granted, that the man who entered tortuously, retained the possession from the commencement, till the delivery of possession to the plaintiff. The court will intend everything possible against him. As to the manner in which the possession was held among the defendants themselves, the plaintiff has nothing to do with it.

That the record was evidence against all the defendants, is clear, because the appearance was general, M'Cullough v. Guetner, 1 Binn. 214, and because there was an appeal by all, whereas the casual ejector is not competent to take that step. Cooper v. Dale, 1 Stra. 532; Orion v. Mee, Barnes' Notes 188; Roe v. Doe, Id. 181. The declaration might have been amended upon motion, and may now be considered as amended. 3 Bl. Com. 407. The Court will overlook the exception. Rex v. Landaff, 2 Stra. 1011.

Reply. Goodtitle v. Tombs was the cause of an actual ouster by one tenant in common of another, and the only question was whether an action of trespass for the mesne profits would lie in such a case. As to Blackstone, he is evidently speaking of the title being conclusively proved from the date of the demise, not the possession.

TILGHMAN C. J. The exception to the charge of the President is that the jury were misled by it, because they were not told, that the record was not evidence of the length of time for which the defendants were in possession, which ought to have been proved by other evidence. It has also been contended, that the record was not evidence against the defendants at all, because the issue appears to have been joined between the plaintiffs and John Foulplay the casual ejector.

I think there is nothing in the last objection, because it appears that notice of the ejectment was served on all the defendants, that they all appeared and entered into the common rule, that they all appealed from the Circuit Court to the *Supreme Court, and that in the Supreme Court, judgment was entered against all. The omission there

*454]

[Bailey and others v. Fairplay.]

fore of striking the name of the casual ejector out of the declaration, and inserting the names of the defendants in the place of it, is not to be regarded. An amendment would have been granted on application to the Court at any time; and viewing the whole record, this Court perceives that judgment was finally entered against the defendants, which is conclusive against them, and would be conclusive even if a writ of error were now depending before us, because we should consider it in the same light as if the error had been amended.

As to the possession, the record of the recovery in the ejectment certainly is conclusive evidence of the defendants' being in possession at the time the ejectment was brought, because unless that had been proved, the plaintiff could not have recovered. In order to recover in ejectment, the plaintiff must prove, first that he had title at the time of the demise laid in his declaration, and secondly that the defendant was in possession at the time the suit was brought; and on proving these two things he is entitled to a verdict. As it is not material to the present question, I will not say positively, whether the plaintiff might not recover on proving that the defendant had been in possession some time before the commencement of the ejectment, and within the time laid in the demise, although not at the time of the action being commenced. But is he bound to prove that the defendant was in possession from the time of the demise? It is contended on the part of the plaintiff that he is. But I cannot understand on what principle this position can be supported. The plaintiff may lay the ouster committed by the defendant at any time he pleases, provided it is after the demise; but he is put to no proof of it. The tenant is obliged to enter a rule whereby he agrees to confess the ouster, before he is permitted to become defendant in the action. But as to the possession, it is enough if the plaintiff proves the defendant to have had it at the time the suit was commenced. So that no inference can be drawn from the recovery in the ejectment as to the length of time for which the defendant has been in possession. Thus the law would seem to be on principle, and we shall find that the authorities are in conformity to it.

In Aslin v. Parkin, 2 Burr. 668, Lord MANSFIELD says in *express terms, that "as to the length of time the defendant has occupied, the judgment proves nothing." [*455 And in 2 Peake's Evid. 326, it is laid down as settled law, that in action for mesne profits after a recovery in ejectment, the plaintiff must prove the length of time the defendant has

[Bailey and others v. Fairplay.]

been in possession. To this the counsel for the plaintiff oppose what is said by GOULD justice, in Goodtitle v. Tombs 3 Wils. 121. The words are these. "It must be taken for granted in this case, that there was an actual ouster, and that the defendant kept him out from the time of the demise until the judgment in the ejectment." But on examining this case, it will be found that the expressions relied on have no bearing on the point, because there was no question as to the length of time the defendant was in possession. It was an action for recovery of mesne profits after judgment by default in an ejectment against Tombs, who was tenant in common with the lessor of the plaintiff; and the only question submitted to the court was, "whether one tenant in common could maintain this action against the other, to recover damages for the expulsion and mesne profits." This is the point then to which the general expressions of Gould are to be applied. As to the length of the defendant's possession there was no dispute, it must have been either proved or agreed on at the trial. All that the court had to decide was, whether one tenant in common could recover in this action at all, taking for granted that the defendant had been in possession and received the profits. The same remark will be an explanation of the passages cited from Buller's Nisi Prius and 3 Black. Comm. 205, "that the judgment is conclusive evidence to recover mesne profits from the time of the demise. The meaning is, that it is conclusive as to title, for the whole time laid in the demise. But if the plaintiff would recover the profits beyond the time of the demise, the defendant may put him to prove his title, because the record only shows that he recovered the term mentioned in the declaration.

But it is objected, that be the law as it may on this point, the charge of the judge was not erroneous, because it was silent. This is very true, and it is also true, that in what the judge did say he was correct. But still the charge upon the whole was incorrect: because by stating only part of the law, the jury were suffered to fall into an error, by *456] which the defendants were injured. The jury are to receive instructions from the court. If this instruction is given in such a manner as to mislead them, there is an error which ought to be corrected. The record contains the evidence and the charge to which the defendant's counsel excepted, and prayed that the charge might be reduced to writing, and filed according to the act in such case provided. As the whole charge is on the record, we must now take it, that the whole is open to exception, although if the judge

[The Commonwealth v. Cochran and others.]

had thought proper, he might have called on the counsel to point out the part to which he objected, and reduced that part only to writing. On the whole it appears to me that there is error. I am therefore of opinion that the judgment. should be reversed, and a venire de novo be awarded.

YEATES J. and BRACKENRIDGE J. were of the same opinion.

Judgment reversed.

[Cited in 3 S. & R. 376; 2 Barr 209; 1 C. 497; 18 S. 81, 279; 3 W. N. 446. Followed in 4 W. N. 377.]

[Lancaster, Saturday, May 28, 1814.]

The Commonwealth ex rel. BRODHEAD against СосHRAN and others, the Officers of the Land Office.

The board of property has the same judicial power, in regard to donation lands, as in other cases; and after they have deliberated and decided against issuing patents, a mandamus does not lie to compel them.

At May Term 1800 a rule was obtained upon the defendants to show cause why a mandamus should not issue, commanding them to grant patents to the relator, for several tracts of donation land claimed by him, in right of several soldiers of the continental army in the war of the revolution.

To this the defendants made return at May sessions 1811, that the relator had presented a petition to them for the same object, and that they had decided to reject it; the return setting out the cause of their decision.

Hopkins now moved for a peremptory mandamus, and upon the merits contended that the decision was wrong, *and that the Board in regard to donation lands exercised a ministerial not a judicial power.

[*457

TILGHMAN C. J. It was determined by this Court in the case of The Commonwealth ex relat. Griffith v. The Officers of the Land Office that when the board of property acted in a judicial capacity, they might be commanded to proceed to

decision, but their decision could not be controlled. In this case they have decided on the petition of Mr. Brodhead, so that it is only necessary to inquire whether they