
    GENERAL COURT,
    MAY TERM, 1792.
    Michael Gore’s Lessee against Samuel Worthington.
    THIS was an inquiry of damages issued on a judgment in ejectment, obtained at May term, 1787. In July, 1791, the writ of inquiry of damages issued, and an inquisition found, awarding to the plaintiff 87/. current money, damages.
    At the trial before the sheriff of Baltimore county, and the jury empannelled to try the same, the plaintiff, by his counsel, offered to give in evidence to the jury, the actual damages sustained by Michael Gore, by being hept out of the use, occupation and profits of the land in the declaration and judgment from the 1st of January, 1783, until the 1st of January, 1787. To which evidence so offered to the jury, the defendant, by his counsel, objected, but the sheriff permitted the evidence to' go to the jury. Thé defendant excepted.
    The defendant, at the return day, (October term, 1791,) moved to set aside the inquisition ; the cause was continued till this term, when the defendant’s counsel contended -that mesne profits were recoverable by an action of trespass only; that the damages recovered in ejectment were merely nominal, for the ouster, the injury complained of was merely nominal, and cited Runn. Eject. 4. 164. 2 Bac. Abr. 181. That the statute of 16 and 17 Car. II. c. 8. never extended to this state. That the statute only extends to cases of writs of inquiry after judgments affirmed on writs of error.
    The plaintiff’s counsel contended that anciently, ejectments were only brought for profits, and not for the possession. That the statute was made to give the writ of inquiry after error that would not lie before, which admits the principle, that an inquiry for mesne profits will lie before error. He showed large sums in damages were found in the books of precedents on writ of inquiry, and that writs of inquiry in ejectment had issued before the revolution, and that it had always been the practice to issue them. Cited Buller, 88. 2 Stra. 1056. Barnes's Notes, 87. Lill. Ent. 599. 606, 607. Gilb. 2. 8. 53. 93. 102. 298. 312. 1 Burr. 668. 3 Wils. 118. Burr. 668. 688. 2 Crompt. 222. 1 Bl. 360. Co. Litt. 199. b.
   The Court

ordered the writ of inquiry and inquisition to be quashed, being of opinion that mesne profits cannot be given in evidence on a writ of inquiry.

The plaintiff removed the cause, by writ of error, to the court of appeals, where it abated by the death of the lessor of the plaintiff. 
      
       See the ease of M'Cubbin v. Shield’s Lessee, ante, 7.
     