| Pa. | May 8, 1871
The opinion of the court was delivered,
The first assignment of error needs no notice. If at all competent the offer was made out of order. The 2d, 3d, 4th and 5th assignments raise a single question upon the conclusive effect of the action of ejectment, the record of which was given in evidence. This was an action for mesne profits, and the defendant, Sopp, offered to show that he was not in possession after the bringing of the ejectment; but the court below held that his possession was one of the questions in that suit, and that it settled that all the defendants were in possession from the 29th of June 1865, the date of the issuing of the writ, until the 10th of February 1867, when possession was delivered to the plaintiff upon the writ of habere facias possessionem, and that they were all liable for the mesne profits during that period. This was an error. The ejectment is conclusive evidence that Sopp was in possession when the writ was served on him, but only primff facie evidence that he continued therein until the delivery of the premises to the plaintiff. It is well settled that the verdict and judgment in ejectment are conclusive of the plaintiff’s right of possession, and his right to the mesne profits between the bringing of the ejectment and the delivery of the possession under the habere facias possessionem. During this interval his right cannot be questioned: Postens v. Postens, 3 W. & S. 182; Drexel v. Man, 2 Barr 271; Man Jr. v. Drexel, 2 Barr 202; Osbourn v. Osbourn, 11 S. & R. 55; Huston v. Wickersham, 2 W. & S. 313; Tillinghast’s Adams on Ejectment, ed. 1840, pp. 388, 389. But the defendant’s continuance in possession after service of the writ stands on a different footing, and neither on principle nor authority will he be prevented from showing that he had left the possession, or was not in it after service. The trial of an ejectment proceeds upon the state of the case as it stood at the bringing of the suit, and evidence of the possession after the service of the writ down to the time of trial is not generally given, except where the plaintiff is proceeding under notice to recover the mesne profits in the ejectment. The verdict and judgment, therefore, conclude the defendant only as to the plaintiff’s right to the mesne profits during the interval before mentioned, and his own tortious possession at the bringing of the suit. Butpf he openly, notoriously and fairly abandons the possession, or if the plaintiff resumes it before trial, there is no reason why he should pay for profits never reaped. The ejectment decided against him being conclusive of his possession at the time of the service upon him, the presumption is that he continues in possession, and the record is, therefore, primff facie evidence of the fact. But the plaintiff’s present action being for damages for the withholding of the possession from him, the mesne profits,
The question being one of damages the jury may allow interest on the mesne profits: Drexel v. Man, 2 Barr 276; Huston v. Wickersham, 2 W. & S. 208.
The error of the court not having injured any one but Sopp, the judgment will be reversed only as to him, and modified by affirming it as to the others, according to McCanna v. Johnson, 7 Harris 435.
Judgment reversed as to Ernst Sopp, and affirmed as to the other defendants, with leave to the plaintiff to move the court, if there be cause, for a venire facias de novo as to Sopp.