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plain that this will introduce into the subject of wrongs all the nice distinctions which exist in the law of Bailments, and others still more perplexing; the tribunal will in each case have to decide not only a legal but a moral question, and to determine, moreover, the amount of consequences for which a given amount of immorality or negligence is to be made answerable. There seems at first sight reason in saying that a wrong-doer should be visited more severely with the consequences of conduct immoral as well as illegal, than when the act is simply the breach of positive law. But in a large class of cases, this difficulty is already obviated by the allowance of vindictive damages; and where this is not the case, there is inherent difficulty in drawing the nice distinctions which this rule requires. The danger to be apprehended is, either that the courts will lose themselves in a maze of abstract casuistry, as to the different degrees of fault; or that in despair of reducing the subject to principle, they will throw the responsibility of the matter on the jury, leaving every thing to their vague, fluctuating, and all but uncontrolled discretion. (u)

Better, I humbly think, it would be, in all matters of tort where the wrong is not so flagrant as to warrant vindictive damages, to adhere as closely as possible to a fixed rule,—to declare

that in no case shall the measure of relief depend on the [115] motive of the party, and that the remuneration is in all

cases to be limited to the natural and proximate consequences of the act. Even this is vague enough; for language confesses itself incompetent to depict the nicer shades of right and obligation; and all rules will be found valueless unless applied and expounded by tribunals as sagacious as they are learned.

Having thus examined the general principles which govern the measure of damages in regard to the consequences of the act complained of, we now proceed to consider the rule of compensation in particular actions; and first, of those in which are litigated, claims to the possession of real property.

(u) Hasse, in his 12th chapter, 400, admits and defends the almost absolute control over the subject, both of liability and remuneration, which the vagueness of the Roman law, in its definition of culpa,

necessarily gave to the judex, whose functions answered to those of our jury. The more loose the law, the more absolute, of course the tribunal,

CHAPTER IV.

MEASURE OF DAMAGES IN ACTIONS FOR POSSESSION OF REAL PROPERTY.

Rule of Damages in actions brought to recover the possession of Real Estate-In Real Actions generally-Ejectment-Trespass for mesne Profits-Dower.

HAVING thus disposed of nominal and of remote or consequential damages, we proceed to consider the rules which govern the measure of compensation in the various forms of common-law procedure. And first, of those actions which relate to the possession of real estate.

Five of the first chapters of Mr. Sayer's work on this subject, to which I have already referred, (v) are devoted to a consideration of the law of damages in the actions of Assize of novel disseisin, Entry sur novel disseisin, Assize of mort d'ancestor, Cosinage, Aiel and Besaiel. Many of the forms of real actions were introduced into America from the mother country, (w) and some still survive; but the particular actions above mentioned have been rarely, if ever, employed in the Union; and they were in England absolutely abolished by the statutes 3 and 4 Will. IV., c. 27, § 36; for the "limitations of actions," which swept away, indiscriminately, between fifty and sixty species of proceedings, leaving as the only real or mixed actions, a writ of dower, dower unde nihil habet, quare impedit, and ejectment. (x) Repeated statutory changes have also been made in the various States on this same subject, the general result of which has been that the actions of ejectment or trespass to try titles and dower, are the only real or mixed actions now in extensive use in the Union. The action of quare impedit, relating to a species [117] of property-advowson-which never existed among us, is wholly a stranger to American jurisprudence.

(v) Introduction, 1.

(2) As to the extent to which the real actions were adopted by us, see Kent's Commentaries, Vol. iv., 5th edit., 70, in notis. And see an article by Judge Jack

son, American Jurist, vol. ii., 65, for July, 1829, to the same point.

(x) Warren's Law Studies, first edit., 15 and 16, in notis.

There is still another form of action- Waste-by which the possession of real estate is sometimes changed, and which may, perhaps, strictly belong to this division of the subject; but I have thought that it might be more conveniently and appropriately discussed under the head of trespasses, nuisances, and other interferences with the occupation or enjoyment of real property.

The actions above named are the usual modes of procedure with us, by which the possession of real estate is now altered. It is necessary briefly to allude to the general principles regulating damages in real actions as they once existed: but the sweeping changes which have been effected in the original structure of English jurisprudence, will make this discussion a very cursory one; and we shall then examine the law in regard to the substitutes which have now taken their places - ejectment and dower.

In real actions, properly speaking, damages were not originally given at common law, (y) "for it is of the essence of a real action, that only a real thing can be recovered therein; whenever damages, which are a pecuniary recompense, and consequently a personal thing, are recoverable in the same action, the action becomes mixed." (2) By the statutes of Merton, Marlbridge, and

Gloucester, however, (a) damages were given in the prin[118] cipal real actions. In those actions where no damages

were directly given, and in which, pending the suit, the defendant might impair the value of the property, the ancient writ of estrepement (b) gave indirect relief. It lay properly in real actions, where the plaintiff could not recover damages by his suit, and, as it were, supplied damages. (c)

(y) Sayer on Damages, 5.

(2) Blackstone says, that in the assize of novel disseisin, if the recognitors find the seisin and disseisin, the demandant shall recover his seisin and damages for the injury sustained, "being the only case in which damages were recoverable in any possessory action at the common law, the tenant being in all other cases allowed to retain the intermediate profits of the land to enable him to perform the feodal services."-Com., Book III., Ch. 10, 187 and 188.

So in Pilfold's case, Rep. X., 115, it is said, "In personal actions they shall declare to damage, because they shall recover damages only for the wrong done before the writ brought, and shall recover no damages for any done pending the

writ; but in real actions the demandant shall never count to damages, because he is to recover damages pending the writ

*

* At the common law, before the statute of Gloucester (anno 6 E. I., e. I.), a man should not recover damages in any real action, as in dower before the statute of Merton, c. I., nor in Aiel, Mordancestor, before the said statute of Gloucester; but in actions mixed, as in assize, entry in the nature of assize or in personal actions, as trespass quare clausum fregit, of goods taken away, &c." See, also, Roscoe on Real Actions, I., 307.

(a) 20 Hen. III., c. 3; 52 Hen. III., c. 16; and 6 Edw. I., anno 1278.

(6) Estrepamentum-from the Fr. estropier-mutilare.

(c) Termes de la Ley, in voc.; Tomlin's

In regard to property in advowsons, it may be briefly noticed that no damages were recoverable at the common law in an assize of darrein presentment, nor in action of quare impedit. (d) And the action of darrein presentment was abolished in England by the statute of limitation of actions, to which we have already referred. By the statute of 2 West., c. 5, it was provided, in writs of quare impedit and darrein presentment, if a disturbance of six months took place, that damage should be awarded to two years' value of the church; if six months did not pass, but the presentment were deraigned (i. e., proved) within that time, damages should be awarded to half a year's value of the church. If a more particular view of this branch of our subject is desired by the student, he will find it in those English treatises which are devoted to this particular matter. The scope of this work does not allow a further examination of it.

We come, then, to consider the law of damages in the actions relating to real property, as in general application in the Union; and first, of Ejectment. (e)

"Whilst the action of ejectment remained in its original state (f) and the ancient practice prevailed, the measure of damages given by the jury when the plaintiff recovered his term were the profits of the land accruing during the tortious holding of the defendant. But as upon the introduction of the modern system, the proceedings became altogether fictitious, [119] and the plaintiff merely nominal, the damages assessed became nominal also; and they have not, since that time, included the injury sustained by the claimant from the loss of his possession." (1)

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Ejectment, Dower, and Quare Impedit.

(f) Adams on Ejectment, by Tillinghast, 379. "Before the time of Henry VII.," said Wilmot, C. J., in Goodtitle vs. Tombs, 3 Wils., 118, "plaintiffs in ejectment did not recover the term, but until about that time the mesne profits were the measure of damages. the old law and practice, in an action of ejectment, as I before said, you recovered nothing but damages, the measure whereof was the mesne profits."

By

(1) It is held in North Carolina, that in ejectment the usual and proper course is to give the plaintiff nominal damages, leaving the real damages to be recovered in the subsequent correlative action of trespass for the mesne profits; yet that it would

And thus it has been decided in New York, (g) that a recov ery of nominal damages in the action of ejectment is no bar to an action for the mesne profits, and that it is unnecessary to enter a remittitur damna. (h)

In Pennsylvania, it has been decided that the damages in ejectment being merely nominal, a verdict finding for the plaintiff without assessing damages is not thereby vitiated; (2) and the same would probably be the rule in New York.

In some of the States, the course of proceedings is, however, to recover the mesne profits in the action of ejectment, or in an action of trespass to try the title; (3) and in those States the rules that we shall proceed to give, in regard to the action of trespass for mesne profits, will, it is to be supposed, govern in the ejectment suit, or in the action of trespass. ()

(g) Van Alen v. Rogers, 1 J. Cas., 213.

In the same State, by a statutory provision (Rev. Stat., ii., 231, 2d edit.,

6), the real plaintiff is now obliged to bring the suit against a real defendant; but the damages are still merely nominal, subject to the exception hereafter noticed. The seventh section of the same statute requires the plaintiff to aver, in his declaration, that the defendant "unlawfully withholds from the plaintiff the possession of the premises, to his damage any nominal sum the plaintiff shall think proper to state." In Pennsylvania, a plaintiff in ejectment, under the acts of 1806 and 1807, may recover damages and costs, although he has conveyed the title to a third person, pending the suit. -Murray v. Garretson, 4 S. & R., 130.

The New York statute (Revised Statutes, ii., 2d edit., 236, § 44, et seq., has also prescribed the mode of recover ing mesne profits, by a suggestion on the record; the action of trespass for mesne profits, as we shall see hereafter, being retained where the defendant in the ejectment suit is a tenant or mere occupant, claiming title under some other person, who defends the suit in his name. (1) See Leland v. Tousey, 6 Hill, 328. The Code has made little change in regard to Ejectment. Rogers v. Wing, 5 Pr. R.,

50.

(i) Harvey v. Snow, 1 Yeates' Rep., 156. Gough's Lessee v. Rinehart, cited i Yeates' Rep., 157.

(j) Starr v. Pease, 8 Conn. R., 541. So in Pennsylvania, if the plaintiff chooses

not be error to direct, that the actual damages should be assessed in the ejectment; the division of actions being merely for convenience. Miller v. Melchor, 13 Ired. (N. C.) Law, 439.

(1) See Ryers v. Wheeler, Hill & D. Supp. 389.

(2) It is now held in New York, that a claim for mesne profits may be sued in an action under the Code of Procedure. Holmes v. Davis, 21 Barb. 265. In Massachusetts mesne profits are recovered under the writ of entry as regulated by Revised Statutes, ch. 101. As to the mode of procedure in that State, see Raymond v. Andrews, 6 Cush. 265; Richards v. Randall, 4 Gray, 53. As to recovery of mesne profits in a possessory action in Louisiana, see Chinn v. Blanchard, 6 La. Ann. 66. As to the proper mode of proceeding in other States, see the following cases. Pennsylvania, Bright v. Ewing, 26 Penn. St. 135; Maine, Larrabee v. Lumbert, 36 Me. 440; Georgia, Shadrach v. McDonald, 15 Ga. 392; Arkansas, Main v. Gordon, 7 Eng. 651; Floyd v. Rich, 14 Barb. 286; Brock v. Smith, Ib. 482; Maryland, Mitchell v. Mitchell, 1 Md. 58; S. C., 10 Ib. 284; Tennessee, 2 Swan, 230.

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