Baron v. Abeel , 3 Johns. 481 ( 1808 )

Van Ness, J.

delivered- the opinion of the court. (Spencer, J. hesitante.) The service of a declaration in ejectment on the tenant in possession is considered as much the commencement of the suit, as the service of a capiasad respondendum in personal actions. The lessor of the plaintiff and the tenant are the real and substantial parties. (Aslin v. Parkin, 2 Burr. 665. Van Alen v. Rogers, 1 Johns. Cases, 288. Goodtitle v. Tombs, 3 Wils. 118.) Upon filing an affidavit of the service of the declaration^ and entering the common rule, the tenant, if he means t© Snake a defence, is bound to appear, and if he omits to do so, judgment by default, in effect, is rendered against him, because he may be turned out of posession, and because he is liable for the costs in an action for the mesne profits. The effect of a judgment in ejectment, whether by default, otherwise, upon the rights of the parties is substantially the same as in personal actions. The form of the proceedings is different, but after judgment, the legal consequences are essentially the same. One of these consequences, is, that the lessor has a right to bring an action for the mesne profits, for the double purpose of obtaining compensation for the use of the land, and recovering the costs of the ejectment. In the action for mesne profits, the defendant is precluded from setting up any defence of which he might have availed himself in the original action of ejectment. It has been said that there is a difference in this respect, between a judgment by default, and a judgment after verdict; but it has been settled otherwise.

In the case of Aslin v. Parkin, Lord Mansfield, in delivering the opinion of the court, says, “ there is no distinction between a judgment in ejectment upon a verdict, and a judgment by default. In the first case, the right of the plaintiff is tried and determined; in the last case it is confessed.”

Again, in Goodtitle v. Tombs, where the question was, whether one tenant in common could maintain this action against the other, after a recovery in ejectment by default: Wilmot, Ch. J. said, “ I consider the recovery in ejectment by default, or after verdict, as the same thing,” and Gould, J. says, the action for the mesne profits follows the ejectment as a necessary consequence, and in this case the judgment by default is of the very same effect as if it had been after verdict. The court will intend every thing possible against the defendant.” These cases, especially the latter, are directly in point.

The defence relied upon in this suit would have been a good,bar to the recovery in the action of ejectment; and to permit the defendant to set it up here,, would be to try the plaintiff *s right to recover in the ejectment. By suffering a judgment to go by default, the defendant has admitted himself to be in possession 5 and ^ *s now" t°° late for him to controvert that fact. There is no greater hardship in this case than in every other, where the defendant suffers a judgment to be entered against him by neglecting to appear, and defend the suit. The evidence offered was, therefore, properly excluded by the judge, and as the plaintiff claimed only nominal damages for the mesne profits, he was entitled to recover that, and the costs in the action of ejectment.

-A question was made, on the argument, as to the plaintiff’s right to recover the costs under the declaration in this cause ; but as the pleadings are not set forth in the case we are unable to give any opinion respecting itz The defendant must take nothing by his motion.

Judgment for the plaintiff.