
    Vance v. The Inhabitants of Congressional Township, &c.
    
      Monday, November 25.
    
    In trespass for mesne profits after judgment in ejectment, the defendant, to prevent a recovery of profits that accrued before service of the declaration in ejectment, may prove that he had not occupied the premises before such service.
    ERROR to the Montgomery Circuit Court.
   Blackford, J.

— The inhabitants of a congressional township, after a recovery in ejectment against the defendant, brought an action of trespass against him.for the mesne profits. Plea, not guilty. Verdict and judgment for the plaintiffs.

It appears by a bill of exceptions, that after the plaintiffs had introduced the record of recovery in ejectment, showing that the demise in the declaration in ejectment was laid on the first of January, 1841, and that after the plaintiffs had proved the rents and profits of the premises to be worth 200 dollars from January, 1841, to March, 1842, and before the defendant had closed his testimony to the jury, the defendant offered witnesses to prove that he was not in the actual possession of the premises up to and until the time of the acknowledgment of service of the declaration in ejectment.

This evidence was objected to and rejected. This bill of exceptions shows, that the plaintiffs were endeavouring to recover the mesne profits from the date of the demise to the time when service of the declaration in ejectment was acknowledged. It was for the defendant to prevent such recovery if he could, and he had a right, for that purpose, to introduce the evidence he offered, which tended to prove that the defendant had not occupied the premises before service of the declaration in ejectment.

It is to be observed with respect to this action, that the plaintiff can only recover damages for the time the defendant has actually occupied the premises or been in the receipt of the rents and profits ; and that though, in such action, the judgment in ejectment is conclusive evidence of the plaintiff’s tide from the date of the demise laid, it is no evidence of the defendant’s occupation previously to the service of the declaration in ejectment. Dodwell v. Gibbs, 2 Carr. & Payne, 615.—Adams on Ejectment, 390.

R. C. Gregory, for the plaintiff.

A. Ingram and R. Jones, for the defendants.

Per Curiam.

— The judgment is reversed with costs. Cause remanded, &c.  