
    W. W. Garner et al. v. Friley Jones.
    Ejectment : under pleading act op 1850, mesne profits may be recovered •with the land. — In an action, under the Pleading Act of 1850, for the recovery of land, the plaintiff may also recover the rents and mesne profits to which he may show that he is entitled.
    In error from tbe Circuit Court of Madison county. Hon. E. Gr. Henry, judge.
    Tbe plaintiffs in error brought an action, under tbe Pleading Act of 1850, for tbe recovery of certain land, and also for tbe rents accruing during tbe possession of tbe defendant. Tbe complaint, ' so far as it relates to tbe rent, is as follows :—
    “ That the defendant took possession of tbe land, and has been cultivating the same since tbe 25th day of March, 1835, and enjoying the proceeds of tbe crops raised thereon from that time up to the present, to tbe damage of the plaintiffs five thousand dollars.
    
      “ The relief demanded is a judgment against the defendant, that he restore to plaintiffs the possession of the said land; and that he pay them in money the sum of $5000, by way of rent,” &c.
    The defendant pleaded the general issue and the Statute of Limitations, and upon the trial, the court, at his instance, instructed the jury that the plaintiffs could not, in this action, recover anything for rent and mesne profits.
    The verdict and judgment was for the plaintiffs for the recovery of the land and for one cent damages, and the plaintiffs sued out this writ of error.
    
      A. P. Sill and Franklin Smith, for plaintiff in error,
    Cited and relied upon Davis v. Doe ex dem Delpit, 3 Cushm. 445.
    
      Dawson and Duckett, for defendant in error,
    Relied upon the Pleading Act of 1850, §§ 9 and 18, and insisted that the case relied upon by the adverse counsel, though commenced and prosecuted since the Act of 1850 was passed, could not control the positive provisions of the statute, which was neither cited by the counsel in that case nor referred to in the opinion of the. court.
   Eisher, J.,

delivered the opinion of the court.

The plaintiffs below brought this action to recover a tract of land in the possession of the defendant; and the point for decision is, whether they could recover in the same action the rents or mesne profits to which they might show themselves entitled. The Pleading Act of 1850 in express terms provides for such a state of case; and while the complaint as to the claim for rents is not as certain as the pleading ought to be, even under the latitude allowed by the statute, yet as no objection was made on this ground, the court ought to have refused the defendant’s instruction that a recovery for rents could not be had.

Judgment reversed, and venire de novo awarded.

Note. — This is also the rule under the Revised Code. See Art. 20, p. 389.  