
    CONSTITUTIONAL COURT, COLUMBIA,
    DEC. 1811.
    Ann Lehre v. Thomas Sumter.
    An action was brought to recover the rents and profits of the same land which the plaintiff had before recovered of Murray ; but which the defendant retained in his possession two. or three months after this recovery; and the jury-found a verdict for the plaintiff of more than $200, although it appeared in evidence that the annual value of the land did not exceed $200. The court, being of opinion that the verdict was unwarrantable, granted a new trial. [See Lehre v. Murray, 2 vol. 5 and 18.]
    Motion for a new trial. Action of trespass, guare clausum fregit, tried in Sumter district, before Brevard, J., Spring term, 1810.
    The plaintiff produced in evidence the record of a judicial proceeding in the Court of Common Pleas for Sumter district, in which the plaintiff had recovered a judgment against John Murray, who was the defendant’s tenant, for a certain tract of land called Dry Swamp, and ten dollars damages. The plaintiff then proved that the defendant had leased the land in question to Asbury Sylvester, prior to the said recovery, during several years ; and that he had received for rents and profits thereof, upwards of one thousand dollars. The defendant had pleaded the general issue, a former recovery of damages for the same trespass, and the act of limitations.
    
      * It appeared in evidence, that the action against John Murray was for $5000 damages; that the writ in that action was for trespass guare clausum fregit, and was not endorsed to try the titles ; and that the judgment was recovered in October, 1805.
    It further appeared, that the writ which issued in the present case was served in October, 1807 : and that the defendant abandoned the possession the 12th of December, 1805.-
    The presiding judge, in charging the jury, said, that in his judg. ment it was not material whether the action against Murray was to be regarded as an action of trespass for breaking the close, or an action of trespass for the purpose of trying the title, and to recover the mesne profits. That in the first case, it must be presumed the plaintiff recovered a full satisfaction for the trespass committed on the land by the tenant, the present defendant, up to the time of the recovery. That not only the injury done to the plaintiff by the trespass on his land before the action brought, but also the continuation of that injury, was to be considered as having been compensated, or satisfied by the verdict. That cumulative damages in such cases may g*ven j and that it was to be considered as given in that case. That the jury, therefore, in the present case, could not give damages for any use of the land, or for any trespass done upon it antececient to the recovery against Murray.
    In the second case, it was observed, if the action against Murray was to be considered as an action to try the titles to the land, in place of the old action of ejectment, the present action was not maintainable as an action for the mesne profits. For, as the legis. lature had made it competent to the plaintiff to sue, as well for the mesne profits, as for the recovery of damages for the trespass, it was her duty to have done so, if she had' intended to recover the( mesne profits, or damages for the trespass committed, by the defendant on the land. The law will not allow a multiplicity of actions,. or more than one action, where one action is competent to give sufficient redress. Again, it was observed, in the action against Murray, it must be presumed that the plaintiff recovered the damages mentioned in the judgment, for the trespass on the land, and also in satisfaction of the mesne profits ; for the damages could be given for nothing else.
    Again, it was said, the jury might consider a continuance of the defendant’s possession of the land, after the recovery in the action against Murray, if, in fact, this was the case, as tortious ; and that trespass would lie for such wrongful continuance in possession, in like manner as though there was a new entry, and trespass on the land, notwithstanding the stay of judgment in consequence of an appeal to this court. It is at the peril of costs, and further damages, that the defendant presumes to continue his unlawful possession, after the title has been tried, and a verdict is given against him.
    Further, it was said, whatever may be conceived to have been the form of the action against Murray, still, it is clear, .the title to the land was in question, and was tried and determined : and the defendant in the present action, must, therefore, be concluded by the judgment in that action against his tenant, Murray. This was the title on which the plaintiff relied in this case ; it was the only title he produced: and he could not go further back than the date of hisjtitle, for damages for trespassing on the land for which his title was produced. All the damages to which he was entitled for such trespass, prior to the recovery against Murray, must be considered as having been given by the jury who found the verdict for him in that suit; and for the injury done to the plaintiff after that recovery, by continuing in possession, he was answerable, and for no more.
    
      In estimating these damages, the jtfdge said the jury ought to take into consideration the motives which actuated the defendant in remaining in possession ; whether his doing so proceeded from an obstinate and contumacious disposition, in opposition to the decision made, and from hostility to the plaintiff; or in order to make necessary preparations for his removal; or from a reasonable hope that the decision against him .would be reversed on the appeal which he had made therefrom. The defendant continued in possession after the recovery against Murray, two months and an half, or thereabouts.
    The jury found a verdict for the plaintiff for two hundred dollars and upwards.
    N. B. The action'was brought to recover the rents and profits of the same land which the plaintiff had before recovered, by the action against Murray. In that action the defendant pleaded, the general issue, and liberum tenementum.
    
    The plaintiff recovered a verdict.
    The defendant appealed; and on the hearing of the appeal the judges were divided in opinion, in consequence of which the motion failed. See 2 vol. 18.
    The annual value of the land appeared to be about $200.
    The grounds for a new trial were :‘
    1. Because the verdict was against evidence and law, forasmuch as the plaintiff was not entitled to recover damages for the time that elapsed between the former verdict and the removal of the defendant from the land.
    2. Because, if he was entitled to recover, the damages are excessive, as it appeared in evidence that the annual value of the land did not exceed $200.
    3. Because the former recovery was a complete bar for the whole time, except for about two months and an half.
    '4. Because tihe plaintiff was not entitled to recover for any time antecedent to the evidence of her title, which was the record of her recovery against Murray.
    Nov. 26th, 1812.
    All the judges present.
    Blatjding argued in support of the motion; J. Witherspoon, contra.
    
   The court, Grihke, Bax, Smith, and Coecock,

were of opinion the verdict was unwarrantable. That if the former verdict was unjust the plaintiff ought to have appealed. That the mesne profits were recoverable in the action to try the titles.

Motion granted.

Note. In personal actions, damages are always allowed only to the time of the action commenced. Vide 10 Co. 117. 2 Burr. 1086,1096. But in real actions the plaintiff shall recover damages, pending the writ. Where a duty has incurred, pending the writ, for which no satisfaction can be had by a new suit, such duty shall be included in the judgment to be given upon the action already pending. But where a new action may be brought, and satisfaction had thereon for any duty or demand accrued since the commencement of the pending suit, such demand shall not be included in the judgment, and damages shall be assessed only up to the time of the wrong complained of. In real actions the demandant shall recover damages to the time of the verdict, or writ of inquiry executed.'

• The action of trespass for mesne profits, is always laid with a continuando, and it is presumed that an action of 'trespass to try titles, which combines the action for the mesne profits, with the action of ejectment, is laid with a continuando, or supposed so to be. The old action of ejectment alleged only a single act on entry and ouster. Vide 3 BI. Com. 205. 3 Wills. 118. Runn. 4,5, 44,164. But the injury complained of, was also for detaining possession after ouster, until trial. 4 Dallas, 139. And damages may be given for the whole time the wrong continued. Ibid. The defendant may plead the recovery of the damages in ejectment, with 'an averment that they were given for the mesne profits in bar of an action of trespass. Vide 4 Dallas, 139. Refers to 1 Leon. 313. Carth. 437. 3 Leon. 194. Carth. 242r The mesne profits are recoverable, it seems, in Pennsylvania, as here, in the action to try the titles in ejectment.

Nott, J., was of counsel for the defendant before his election to ^enc^*  