GILL v. TATTEN, 10 F. Cas. 376

CRANCH, Chief Judge (DUCKETT, Circuit Judge, absent). Before the fictitious action of ejectment was devised by the courts, and took the place of real actions, the true action of ejectment was brought only by the .termor himself against the actual ejector, and the term itself was not recovered, but only damages to the value of the residue of the term.yet to come; but the actual ejector still retained possession of the land; and by this means secured the benefit of all his improvements.

When the fictitious action of ejectment was devised, it can scarcely be supposed that the court intended to deprive the defendant of any reasonable benefit which he had before in the old form of action; for “in fictione juris semper aequitas existí t.“ Again, the fictitious action of ejectment was a 'substitute for the assize of novel disseisin, the assize of mort d’ancestor, or for an actual entry, so far only as the assize or the entry, restored the disseizee to the actual possession of the land.

It did not, like the assize, afford a remedy for the damages sustained by the disseizee by being kept out of possession, or by actual injury done to the land and premises. This defect arose from the circumstance that the parties were fictitious. It required the subsequent action of trespass for the mesne profits, in addition to the fictitious action of ejectment, to make the remedy equivalent to an assize.

Where the dis-seizee regained his possession by reentry, he was entitled to the action of trespass with a continuando for the mesne profits; and in the assize and in the action of trespass after reentry, the defendant was permitted to show, in mitigation of damages, that he had sowed the land, or otherwise increased its value by improvements.

TI-IE COURT thinks that the action of trespass for the mesne profits, after a recove^-in the fictitious action of ejectment, is strictly analogous to the action of trespass with a continuando after an entry, and to that part of the remedy by assize which gave the defendant his damages, and is accompanied by the same equitable defence. The opinion of THE COURT, therefore, is, that the improvements mentioned in the cane agreed, may be given in evidence in mitigation of damages in the present action. [See Cases Nos. 5,427, 5,420, and 5,430.]