
    A. L. Duncan, et al., Appellants, vs. John Jackson, et als., Appellees.
    1. Where the verdict of the jury is plainly against testimony, as to which there is no question of credibility, a new trial should he awarded. Hence, in an action of ejectment, under our statute, where there is no. question as to the allowance of mesne profits, and where the value is fixed by the testimony, the jury must find some damages.
    2. Under the statutes of this State, certain occupying claimants, after judgment of eviction against them, may have the value of their improvements assessed hy a jury in a particular manner and under a special charge. This and other provisions of the statute are of such character that the value of the improvements cannot be set off before judgment against the mesne profits recoverable as damages in the action of ejectment.
    Appeal from the Circuit Court for Escambia county.
    The facts of the case are stated in the opinion of the court.
    
      E. A. Perry for Appellants.
    
      R. L. Canvpbell for Appellees.
   Me. Justice Westcott

delivered the opinion of the court.

This is an action of ejectment wherein there was judgment for the appellants, who were plaintiffs in the court below. The land for which the action was brought was a lot in the city of Pensacola, and the judgment was for one-half of it. There was a motion for a new trial, which was denied, and from the consequent judgment this appeal is prosecuted. There are several grounds upon which this motion was based, but in the disposition of the case we refer to only one. Under our statute, (Chapter 999, Laws,) the 'plaintiff is entitled to recover mesne profits. The jury was so instructed in this case. There was no conflict in the testimony. The witness W. E. Lee testified that “ a fair rental value of the premises since suit was brought would be about nine dollars per month. I will say one hundred dollars per year. The yearly rental of a vacant lot like lot number thirty would be three or four dollars per month.” The jury in giving no damages failed to comply with the instructions of the court, as well as to conform to the uncontradicted testimony in the cause. The respondíais insist that the jury did not give damages, because the value of the improvements was considered equal to the rents. If the defendants were entitled to the value of the improvements under the statutes of this State, (the statute for the relief of occupying claimants, Chap. 233, Laws,) the method prescribed by the act for ascertaining the value of the improvements must be followed. Before this is thus ascertained, the defendant cannot be said to have any right which he can set off or recoup. As this case goes again to a jury, we do not comment on the other questions. They relate principally to conclusions of fact, and only involve the consideration of some rules of evidence, which can be best administered without embarassment from this court in the trial to be had.

Judgment reversed and new trial awarded.  