
    Columbia; November Term, IBIS.
    Thomas Sumter ads. Ann Lehie.
    After tres-titano'7 for mew® trofits.
    Brevard, J. This was an action of trespass guare clausum fregit. The defendant pleaded not guilty. The statute of limitations, and a former recovery for the ' same trespass. The case was tried before me, March Term, 1810, at Sumter. The plaintiff produced in evidence, the record of a judgment in the same court) obtained by her against one John Murray, defendant’s tenant, for a tract of land called a Dry Swamp,” and ten dollars damages. She there proved that defendant had let the same land to one JLsberry Sylvester, several years pending the action against Murray: that the annual value of the land was about $200, and that defendant had received more than $1000 from it by rent. The action against Murray, was Trespass quare clausum fregit: the writ was not indorsed as required by the Act of Assembly, in suits to try title, and the damages were laid at $5000. Judgment was recovered against Murray, in October, 1805, and the defendant quit the land, on the 12th December following. The present action was commenced in October, 1807. I charged the jury that it was immaterial, whether the action against Murray be considered, trespass for breaking the close, or trespass to try title. That considered as an action of the first kind, it must be presumed, from the state of the case, that the plaintiff has had full satisfaction for the injury, of which she complains, up to the time of the recovery. The jury, therefore, ought not to give damages for the use of the land, or any trespass committed on it, anterior to the date of the plaintiff’s recovery against Murray, who is admitted to have been defendant’s tenant.
    That if the suit against Murray, be considered trespass to try title, then no action for the mesne profits can be maintained: because the plaintiff might have recovered damages for mesne profits in the action of trespass to try title; and it must be presumed that she did so recover. If in fact, no damages were recovered, it is owing to the plaintiff’s own laches, and cannot be remedied by a separate action.
    But that if the defendant held eyer after the recovery against him, such possession was tortious, and rendered him liable to a new action, notwithstanding his appeal. That whatever might be said, as to the form of the action against Murray, it was clear, that the title of the parties was brought in question; -and that the judgment, was conclusive against the defendants. That in estimating the damages, the motives of the defendant in retaining possession after the verdict, ought t<? be taken into consideration j and the jury should enquire whether his holding over was contumacious, and in despite of the law j or whether he acted from a reasonable expectation that a new trial would be granted. 10 Coke, 117, g 1086. 1096. 3 Bl. Com. 205. 3. WU. Run. 4, 5. 44. 164. 4 Dallas, 139.
    The jury found for the plaintiff $250. and costs.
    Motion for a new trial.
   Smith, J.

The plaintiff, after recovering the land from the defendant, commenced this action to recover the mesne profits, in pursuance of what had been the modern practice in the proceeding by ejectment. As the proceedings by ejectment was a feigned action against a nominal defendant, intended to reach the title only, the question of damages was excluded, and of course another action became necessary, if damages were to be recovered. This led to the action for mesne profits, which was trespass against the real defendant. But the legislature, by the act of 1791, have very wisely abolished the fictitious proceeding by ejectment, and substituted the action of trespass to try title ; in which the jury, if they find for the plaintiff, are authorised in the same verdict, to assess damages for the mesne profits ; and judgment is to be entered, as well for the land as for the damages assessed. ■ Under this act the plaintiff had her first trial, and in a legal point of view, she has had as ample remedy, as if ■she had first recovered her land by one verdict, and afterwards recovered the mesne profits by another. From the principles of this action, the plaintiff shall recover damages, not only from the time of eviction ó the time of commencing the action, but pending the action; (10 Coke, 117.) and up to the time of the verdict; (4 Dallas, 139.) To recover damages twice for the same injury, is a thing unknown to our law. But it was argued for the plaintiff, against this motion, that the damages in the former action were quite too small, and altogether inadequate to the injury. That the plaintiff had been evicted upwards of two years, and the annual profits of the land were equal to $200 ; therefore the jury could not have intended $10. as a compensation. But it appears to me, that these matters cannot be taken into consideration here at all. The only way in which the plaintiff could have been relieved from the inadequacy of the verdict,, would have been by a motion for a new trial.' But instead of doing so, she resisted the motion for a new trial; and the defendant-lost his motion, not by an opinion of the majority, but by a division of the court. The plaintiff had the benefit of this division ; and thereby saved her title from being put in jeopardy again. By a second action she now endeavours to make up the deficiency of the verdict; but I am clearly of opinion that this1 cannot he done, and that she ought not to recover’ for any thing before the verdict against Murray. Therefore, if the annual profits were worth only $200, and the defendant held over after the verdict only two months and a half; I think a new trial ought to be granted, on the ground of excessive damages.

The other Judges concurred.  