Warren v. Steer , 118 Pa. 529 ( 1888 )

Opinion,

Mr. Justice Paxson:

This was the application of an exceedingly clumsy piece of legal ordnance of the time of Charles II. to modern legal warfare. The plaintiff below had recovered in an ejectment, and after obtaining possession sued out a writ of inquiry of damages, the object of which can best be explained by reference to the prsecipe, which is as follows: “ Issue writ of inquiry of damages accruing to plaintiff herein by reason of the taking of the writ of error to the Supreme Court- of Pennsylvania, by the defendants herein, and the affirmance by that court of the judgment heretofore entered, whereby the plaintiff is entitled to recover among other damages a reasonable return or rental of the real estate pending the said proceeding in arrear.”

For the plaintiff it was contended that the writhe an be sustained under the fourth section of chapter 8 of the 16 and 17 Charles II., which reads as follows : And to the end that the same sum and sums and damages may be ascertained, it is further enacted, That the court wherein such execution ought to be granted upon such affirmation, discontinuance or nonsuit, shall issue a writ to inquire as well of the mesne profits as of the damages by any waste committed after the first judgment in dower or in ejectione firms, and upon the return thereof judgment shall be given, and execution awarded for such mesne profits and damages, and also for costs of suit.

The plaintiff contends that this statute is in force in Pennsylvania, and that by the third and fourth sections thereof he is entitled to this writ of inquiry. It is true in Roberts’s Digest, pages 41* and 42*, it is so reported. It was further claimed that Boyd v. Cowan, 4 Dall. 138, sustains this position. In this, however, we think he is mistaken. The case in 4 Dallas decides nothing but that mesne profits can be recovered in ejectment by way of damages.

There was no recovery for mesne profits here' in the action of ejectment; there was no notice of such claim. This writ of inquiry, as I understand it, was brought merely to recover the mesne profits pending the writ of error in this court, and the costs.

The question whether the statute of Charles II. is in force in Pennsylvania, depends not alone upon the report of the judges as we find it in Roberts’s Digest. We may concede that it was in force at the time that report was made without admitting that it is in force now. And it is a significant fact that no trace of its existence can be found in our books, at least I have been unable to find it after a diligent search, nor has our attention been called to it by counsel. This would seem to imply that it has been fully supplied by our own legislation. If we have a complete system, covering the same ground, or affording a sufficient remedy, we can well afford to dispense with this antique piece of English legislation.

Something might be said as to the argumentum ab inconvenienti. We have here injected into an ejectment case an anomalous proceeding; a writ of inquiry of damages in which a question of mesne profits is tried before a sheriff’s jury. There are no pleadings, and the record comes up to us with the bare verdict of the jury; nothing to show upon what evidence it was rendered, or whether upon any evidence at all. It is impossible for us to review it in any form except to see that the forms of law have been complied with.

The legislation of this state covers fully the entire subject of actions of ejectment and the recovery of mesne profits. It is not necessary to review it in detail. It is sufficient for present purposes to refer to the act of June 11, 1879, P. L. 125, which provides: “ That whenever an action of ejectment is pending for the recovery of real estate, the plaintiff or plaintiffs therein may, as well before as after the termination of said ejectment, bring an action or actions for mesne profits against any person or persons, predecessor or predecessors in title of the defendant or defendants in said ejectment, but such action or actions for mesne profits shall not be proceeded in to trial and judgment, until the plaintiff or plaintiffs shall have recovered possession of the real estate in controversy.” Had this act been passed to meet the case of the plaintiff, it could not have fitted it more accurately. He had recovered in his ejectment ; he had regained the possession, and in an action under the above act he could have recovered the mesne profits down to the day he obtained possession.

Then we have the act of March 21, 1806, 4 Sm. L. 832, which provides that “ In all cases where a remedy is provided or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of said acts shall be strictly pursued, and no penalty shall be inflicted or anything done agreeably to the provisions of the common law, in such cases, further than shall be necessary for carrying such act or acts into effect.”

The legislature having provided the plaintiff a complete remedy for the recovery of his mesne profits he cannot resort to the act of Charles II. It is no longer in force in Pennsylvania.

Judgment reversed.