BULLOCK versus WILSON, 3 Port. 382

Collier, J. This case brings before the Court, many questions of law — all of which, with,the exception of the first and fourth .assignments of error, are understood to have been decided, either by this case, or that of Hamner v. Eddins; and as the Court is satisfied with these decisions, the principles settled by them, will not now be disturbed.

In regard to the-first assignment, it was determined in this case, that the receipt of the Receiver of public monies, given to a purchaser of the government lands, might be read to the jury as evidence of title, where there is no higher evidence of that fact; but. if the title has been perfected by the issuance of a patent, this Court is not understood to have said, that, the certificate shall still be evidence, to prove title.

We do not, however, feel ourselves called upon to decide this question-: for any thing appearing upon the record, the receipt, of the receiver may have been offered for the purpose of showing the time of the defendant’s purchase, that it might be known from what time he became entitled to damages. The bill of exceptions merely recites, that this paper was introduced to prove the issue. Now, as proof of the extent of the damages were clearly within the issue. and the certificate may have been read for that purpose, the Court, did not err in .suffering it to be read to the jury.

The fourth assignment denies the correctness of the rule laid down by the Court, for the ascertainment of the defendant’s damages. The jury were dirented to ascertain what were tlie entire yearly profits of the mill,and to give damages' in proportion, for that, part of the mill that covered defendant’s land. This instruction, we understood to be tantamount to saying, that 1 he' measure of damages, in the action of trespass to try title, is not what damages have been sustained by the occupancy of the premises, .but the profits which the occupier derives from them.

This action has been substituted, by the Legislature, for the actions of ejectment, and trespass for mesne profits, and performs the office of both. For the purpose then, of ascertaining what damages are recoverable in this action, we must enquire what are the criteria of damages in trespass for mesne profits. In regard to that action, all the authorities inform us, the plaintiff is entilled to recover,!he damages he has sustained, by being kept out of possession ; and that these are never increased or diminished, by the profits acquired by the defendant, from his occupancy.

According to some of the decisions, the plaintiff is entitled 10 recover a fair rent only — while others hold, that he is entitled, in addition to rent, toexpen-ces incurred in prosecuting his action of ejectment ' 1 ° J „ trespass. Without pretending to ascertain the precisemea-sure of damages, we are persuaded that there is er- ° ror in the instructions of the Court to the jury. • The judgment is therefore reversed and the cause remanded. , a 2 Porters Rep. 441. 3 Stewart 192 1 Cox’s N. 574...2 Sanon Ple. and Ev 670