This page is an unofficial LFoD record and is not legal advice. Verify the document against the official source before relying on it.
L. B. Walker versus H. G. Prescott
March 1, 1833 - Opinion
Case records
Open case page| Date | Record Text | Type | Party | |
|---|---|---|---|---|
| March 1, 1833 | L. B. Walker versus H. G. Prescott Current page | Opinion | Supreme Court | Reporter |
L. B. Walker versus H. G. Prescott.
Assumpsit does not lie to recover mesne profits after a recovery in a real action.
Assumpsit, for the use and occupation of a certain parcel of land in Gilford. The cause was tried here, at August term, 1831, upon the general issue, and a verdict taken, by consent, for the plaintiff-, subject to the opinion of the court upon the following case.
It appeared, upon the trial, that the plaintiff’ was the owner of the land, and that the defendant had been in possession of the same during the time mentioned in the declaration, having originally entered with the permission of the plaintiff. But it further appeared that the plaintiff sought to recover, in this case, for the use and occupation of the land, from the 8th November, 1828, to the 8th November, 1829, and that on the 3d November, 1828, the plaintiff’brought a writ of entry against the defendant, for the same land, in which suit judgment was rendered in favor of this plaintiff, and on the 13th November, 1829, he took possession by virtue of a habere fa-cias possessionem.
Lyford, for the defendant,
insisted, that assumpsit did not lie for mesne profits. 5 N. H. Rep. 529 Caw's v. Me-Clary.
Walker, pro se, relied upon the case of Cogswell v. Brown, 1 Mass. Rep, 237.
By the court. We consider it as settled, that assumpsit will not lie to recover mesne profits, and the verdict must be set aside and a nonsuit entered.
Judgment for the defendant.