Shadwick v. McDonald

By the Court.

Benning, J.

delivering the opinion.

The action for mesne profits, may be in the name of the nominal plaintiff in the ejectment, or in the name of the real plaintiff. This is the rule, according to the law of England, as that law was, when it was adopted by Georgia. (Adams’ Eject. 330.)

But our Statute of 1834, with respect to mesne profits, has abolished the separate action, for them, and instead of that action, has given permission to “ all plaintiffs in ejectment, to add' a count or counts in their writ of ejectment” for mesne profits.

[1.] This is permission to make the count fór mesne profits, a count in the names of the fictitious parties, corresjmnding to the main count—the declaration in ejectment, itself. All the counts in the same declaration, ought to be between the same parties. (Cobb’s Dig. 489.)

It was, therefore, error in the Court below, to charge the Jury, that no mesne profits could be recovered in the case, unless the count for mesne profits was- in the name of the real plaintiff, and against the real defendant.

[2.] The Jury returned a general verdict for the defendant. This error of the Court, therefore, did the plaintiff no harm whatever; because, if he was not entitled to the land, he was-not entitled to rent—and! the verdict finds, that he was not entitled to the land; still, it is an error, for which the plaintiff must have a new trial. A late Statute malees that necessary— the Act of the last Legislature,. “to regulate the granting of new trials”.

This Act, in its first section, says, among other things, that “it shall be obligatory upon the Superior Courts of this State, to grant new trials in all cases, where an- exception to any portion of the pleadings may be illegally sustained, or illegally over-ruled by the presiding Judge, against the applicant for a new trial; in all cases where any evidence may be illegally submitted to or illegally withheld from the Jury, against the demand of such applicant, in all cases where the presiding Judge may deliver an erroneous charge to the Jury, against such applicant, or refuse to give a legal charge, in the language requested, when the charge, so requested, is submitted in writing”.

The Act further says, “ that it shall be obligatory upon theiSupreme Court of this State, to reverse the judgment below, •and award a new trial, in every case where it shall appear that an error has been committed in any of the points enumerated in.the first section of this Act, by the Judge presiding on the trial of the cause”.

Under this Act, “in all cases where the presiding Judge may deliver an erroneous charge to the Jury against” the applicant, fora new trial, it is made “obligatory” upon this Court to do one thing, and no other, viz: “torevei'so the judgment below, and award a new trial”. The rule imposed upon this Court is universal, unconditional and peremptory. It is a rule to bo satisfied by nothing short of passive obedience. Accordingly, we reverse the judgment of the Court below, and award a new trial, for the charge of the Court below, with respect to the count for mesne profits, was “ erroneous”, although its erroneousness was of a kind which, as things turned out, did the party against whom it was made, the plaintiff, no harm. Had the charge been what the plaintiff requested it to be, the result would have been the same to him. A general verdict against him, for the land, must have carried with it a verdict against him for mesne profits, even if the Court had told the Jury that the count for mesne profits was good.

As to the other charges and decisions excepted to, we arc not prepared to say that we think any of them to have been wrong.