
    
      Jonathan Little against J. and P. Meachum.
    On the hearirtg in damages up-en default in ejectment brought to recover possession of lands bolden by the levy, of an execution, the mesne profits are to be computed from the date of the levy of the execution, and not from the six months allowed by the statute for the defendant to redeem-
    EJECTMENT to recover possession of nineteen acres and nineteen perches of land set off to the plaintiff on execution.
    Defaulted. Defendants to be heard in the assessment of damages. By agreement of parties, damages to be assessed by the Court.
    The facts as they appeared to the Court were,
    That at the November term of Rutland County Court, 1799, the plaintiff . recovered judgment against the present defendants for 501 dols. 70 cts. debt and costs; that on the 4th of May, 1800, he extended his execution on the lands described in the declai'ation, which were appraised at 339 dols. 84 cts. and legally set off to the plaintiff, in part satisfaction of the writ of execution; that on the 5th November, 1800, the plaintiff commenced the present suit.
    The question made was, from what time the mesne profits should be computed; whether from the date of the levy of the execution, or from the 4th of No-, vember, 1800, which was the day of the expiration of the six months allowed by the statute for the defendants to redeem,
    
      Daniel Chipman, for the defendants,
    contended for the latter term.
    . The 5th section of the act dii’ecting the levying and serving of executions, gives a right to a debtor whose lands are appraised and set off to satisfy an execution upon payment of the full sums of debt, dattiáges and costs in the writ of execution contained, with 12 per cent, interest, within the term of six months from the time the execution was extended to exonerate his lands from the levy.
    The 6th section restrains the creditor from 'entering upon the lands until after the expiration of the six months, and, upon non-payment of the redemption money, empowers him to enter without any previous process or notice to the debtor.
    It then charges the debtor or debtors, or their legal representatives remaining in possession, with the rents, profits and improvement of such estate, if it is not redeemed, the value of which shall, if the parties cannot agree, be determined by the appraisal of three judicious and disinterested freeholders. The tender of the sum rendered by the appraisal being made and kept good, shall be a sufficient bar to any action which may be brought for the mesne profits; and if the debtor or debtors shall refuse or neglect to pay such sum, the creditor shall have a right -to an action on the case, founded on the statute to recover the same, with additional damages and costs.
    Here it is manifest the action of ejectment will not lie, until after the expiration of the term of redemption, and that the Legislature, by providing another remedy for the creditor to recover the mesne profits accruing during the term of six months, have excluded the Court from the consideration of the rents, profits and improvements of the land extended upon during the term allowed for redemption under the action of ejectment.
    ■ If the plaintiff would have his remedy, he must pursue the statute process. He should first have endeavoured to agree with the defendants upon the value of the mesne profits. Failing, he should have procured appraisers, and have demanded the sura, found by the appraisal, and then he would be entitled to recover that sum; not such sum as a Court or Jury should find to be the value of the mesne profits; for the statute had appointed another board to decide this question, who, by ocular inspection of the land, and by evidence acquired in the vicinity, might be better able than a Court or Jury to decide with precision.
    
      Lott Hall, contra.
    
    Though the statute has pointed out a mode of ascertaining the value and for the recovery of the mesne profits, it does not follow that the plaintiff is deprived of his common law privilege of having this point decided under the action of ejectment.
    According to the act, either party had the privilege of pursuing the statute mode. Here it appears they have neither had recourse to it. It will be therefore intended that they both meant to rest on the common law mode. This is confirmed by the reference to this Court to assess the damages; for by comparing the dates it will be found there can be no other damages to be assessed than those including the mesne profits accruing during, the term allowed the defendants for redemption, which expired on the 4th of November, 1800, and the plaintiff instituted his present action of ejectment on the 5th of the same month.
    We conceive it to be well worthy the consideration of this Court whether they will now turn the plainliff over to a new action to recover the mesne profits, When without further expense the value of them can be 'here assessed. _
    
      Lott Hall and Cephas Smith, junior* for plaintiff;
    
      Daniel Chipman, for defendants;
   The Court decided, that the plaintiff might shew in evidence the value of the mesne profits from the date of the levy of the writ of execution;  