Action on a Warranty.-Action of Account.-Account Render. 383. Upon a guarantee to the plaintiff of all | since the commencement of the suit, are to be notes of A which he should endorse, to the included by the auditors; and the whole transamount of ten thousand dollars, the plaintiff en- actions between them are to be brought down Jorsed notes of A to the stipulated amount, at to the time when they made an end of the acseveral banks; and when the notes became due, count. Couscher v. Tuolam, 4 Wash. C. C. R. they were taken up at the banks, and new notes, 442. signed by A and B his partner, and endorsed, were received by the banks in their stead. It was held that the guarantee did not apply to the new notes, and that by such substitution the old notes were extinguished. Ibid. 384. One who has become surety for another cannot recover the amount of his responsibility, without showing that he had paid it before action brought. Pigou v. French, 1 Wash. C. C. R. 278. ACTION ON A WARRANTY. 385. In an action on a covenant of warranty, it is necessary for the plaintiff to allege in his declaration, substantially, an eviction by title paramount. Day et al. v. Chism, 10 Wheat. 449; 6 Cond. Rep. 181. 386. No formal words, however, are prescribed in which this allegation is to be made; and an averment that the said O. had not a good and sufficient title to the said tract of land, and by reason thereof the said plaintiffs were ousted and dispossessed of the said premises by due course of law, is sufficient. Ibid. 387. An advertisement of goods for sale, giving them a higher character than, upon examination, they turn out to merit, will not amount to a warranty, where the purchaser relies upon his own personal inspection. Calhoun v. Vecchio, 3 Wash. C. C. R. 165. ACTION OF ACCOUNT. 388. An account current, sent by a foreign merchant to a merchant in the United States, and not objected to for two years, is deemed an account stated, and throws the burden of proof upon him who received and kept it without objection. Freeland v. Heron, 7 Cranch, 147; 2 Cond. Rep. 449. 389. An account closed by a cessation of business between parties is not an account stated. Mandeville et al. v. Wilson, 5 Cranch, 15; 2 Cond. Rep. 175. 390. The statement and discharge of an account for money lent and advanced, is no bar to a claim for any other demand not included in the settled account. Perkins v. Hart's Executors, 11 Wheat. 237; 6 Cond. Rep. 287. 394. In such an action, the report of the au ditors is not objectionable, stating "that plaintiff has no legal demand against the defendant at present," on the ground that it is not certain and final. But it is objectionable, because the report does not state the account; which should always be done in the judgment, quod computet. Ibid. 395. In an action of account, the defendant pleaded plene computassit. The plaintiff had consigned to him a quantity of goods to sell on commission, and the defendant had agreed to return those unsold. He sold a part, and returned to the plaintiff an account, in which he debited himself with all the goods, and credited the sales, leaving a large balance of goods unsold and not returned. Held, that the plea was not maintained, the account rendered not amounting to a full accounting, so long as part of the goods remained unsold, and not returned. The plaintiff could not have maintained an action of insimul computassit, for the balance of the account. Read v. Bertrand, 4 Wash. C. C. R. 556. 396. An action upon an open account, which has been assigned to a third person, is properly brought in the name of the original creditor. But in the action the debtor may set off all payments made to the assignor, and claims against him. Winchester v. Hackley, 2 Cranch's Rep. 342; 1 Cond. Rep. 415. 397. It is a good plea to an action at law for an account, that the defendant has accounted before suit brought to the person from whom the money had been received, or to the person to whom he was bound to account for it, or directed to pay it; or that the money had been received for an object which had been accomplished; or that he never was the bailiff or receiver of the plaintiff to render an account. Baker v. Biddle, 1 Baldwin's C. C. R. 418. 398. No account against the master of a vessel is chargeable to the master, unless it is presented in a reasonable time, so that the master may charge it to the owners before settling his accounts with them. Bains v. The Schooner James and Catharine, 1 Baldwin's C. C. R. 544. ACCOUNT RENDER. 399. Where the declaration in account render, 391. A settled account is only prima facie states a case in which the action might be susevidence of its correctness; it may be impeach-tained at common law, and the evidence shows ed by proof of unfairness, or mistakes in law or it to be a case of one tenant in common suing Wilkins, fact and if it be confined to particular items of another, the variance is fatal. Jordan v. account, it includes nothing in relation to other 2 Wash. C. C. R. 483. items. Ibid. 392. A promissory note given and received in discharge of an open account, is a bar to an action on the open account, although the note be not paid. Sheehy v. Mandeville, 6 Cranch, 253; 2 Cond. Rep. 362. 400. If the declaration charge the defendant, as bailiff of certain goods of the plaintiff, to make profit for the plaintiff, and as receiver of certain sums of money of the plaintiff, from AB, and the evidence is of money received on the joint account of plaintiff and defendant, as partners, the variance is fatal. Ibid. 393. In an action of account on a reference to 401. If the plaintiff means to proceed upon auditors under a judgment quod computet, all articles of account between the parties, incurred the statute of Anne, he must state his case truly Action of Ejectment.-General Principles.-When Ejectment will lie. in the declaration, and according to the circumstances of the same. Ibid 402. A judgment of quod computet, in account render, is an interlocutory judgment, from which no writ of error will lie; and, therefore, completely within the control of the court in which it is rendered, and may be opened at a term subsequent to that in which it was entered. Kitchen v. Strawbridge, 4 Wash. C. C. R. 84. ACTION OF EJECTMENT. 1. General principles..... 2. When ejectment will lie 3. Pleadings 4. Evidence.. 5. Action of trespass for mesne profits. 6. Habere facias possessionem....... 1. General Principles. 411. It is not necessary that an executor of a will made in Virginia, devising land in Kentucky to him, should take out letters testamentary in Kentucky, to enable him to maintain ejectment for the land. Doe v. M'Farland et al., 9 Cranch, 151; 3 Cond. Rep. 317. 412. The remedies in ejectment, in the courts of the United States, are to be at common law or equity; not according to the practice of the state courts, but according to the principles of common law and equity, as distinguished and defined in England. Therefore, a title which, 65 upon general principles, is merely equitable, 66 will not support an ejectment unless the statutes 67 of the state have changed it into a legal title. 68 Robinson v. Campbell, 3 Wheat. 212; 4 Cond. 68 Rep. 235. Page 65 403. The court will not compel the defendant in an ejectment to proceed to trial, until the costs of a former suit, in which the plaintiff had been nonsuited, had been paid. Hurst's Lessee v. Jones, 4 Dallas' Rep. 352. 404. In ejectment at least, if not in every possible case, the decision of the Supreme Court must conform to the state of rights of the parties at the time of its own judgment; so that a treaty, although ratified subsequent to the decision of the court appealed from, becomes a part of the law of the case, and must control the decision. Fairfax v. Hunter's Lessee, 7 Cranch, 603, 632 2 Cond. Rep. 622. 405. In general a recovery in ejectment, like other judgments, binds only parties and privies. Chirac et al. v. Reinicker, 11 Wheat. 280; 6 Cond. Rep. 310. 406. The general rule is, that remedies, in respect to real property, are to be pursued according to the lex loci rei sitæ. Robinson v. Campbell, 3 Wheat. 212; 4 Cond. Rep. 235. 407. The action of ejectment is a possessory action; and the plaintiff, to entitle himself to recover, must have the right of possession: whatever takes away the right of possession, will deprive him of the remedy by ejectment. City of Cincinnati v. White, 6 Peters, 431. 2. When Ejectment will lic. 408. In Pennsylvania, a party may recover an ejectment upon an equitable title; such title is considered as giving a legal right of entry. The right having become an established legal right, and having incorporated itself as such with property and tenures, it remains a legal right, notwithstanding any new distribution of powers, and must be regarded by the common law courts of the United States, as a rule of decision. Simms' Lessee v. Irvine, 3 Dall. 425; 1 Cond. Rep. 198. 409. In Vermont, tenants in common may maintain a joint action of ejectment. Hicks et al. v. Rogers, 4 Cranch, 165; 2 Cond. Rep. 69. 413. But when, by the statutes of a state, a title, which would otherwise be deemed merely equitable, is recognised as a legal title, or a title which would be good at law, is, under circumstances of an equitable nature, declared void; the rights of the parties may, in such a case, be as fully considered in a suit at law in the courts of the United States, as they would be in any state court. Ibid. 414. A conveyance by the plaintiff's lessor during the pendency of an action of ejectment, can operate only on his reversionary interests, and cannot extinguish the prior lease. The existence of such a lease is a fiction, but it is upheld for the purposes of justice. If it expire during the pendency of a suit, the plaintiff cannot recover his term in law, without procuring an enlargement of it by the court; and can proceed only for antecedent damages. Ibid. 415. Where the defendant, in an action of ejectment brought in North Carolina, for lands in that state, has been in possession under title in himself, and those under whom he claims, for a period of seven years, and upwards, such possession is by the statute of limitations of that state, a conclusive legal bar against the action by an adverse claimant; unless such a claimant bring himself, by positive proof, within some of the disabilities provided for by that statute. In the absence of such proof, the title shown by the party in possession is so complete as to prove, in an action upon a covenant against incumbrances, that a recovery obtained by the adverse claimant, was not by a paramount legal title. Somerville's Executors v. Hamilton, Wheat. 230; 4 Cond. Rep. 436. 416. Notice of an ejectment suit, or defence of the suit, by a person not tenant in possession or defendant on record, does not make him party to the suit in contemplation of law, so as to conclude his rights. Chirac v. Reiniker, 11 Wheat. 280; 6 Cond. Rep. 310. 417. In an action of ejectment brought against a third person, he cannot object that the title of the lessor of the plaintiff, founded on a convey410. One tenant in common cannot, in ge-ance by a trustee of the legal estate, is invalid, neral, maintain an action of ejectment against because in making it the trustee had abused his his co-tenant, without an actual ouster. Bar- trust. Even those who may be injured can nitz' Lessee v. Casey, 7 Cranch. 456; 2 Cond. have redress only in equity. Lessee of Bayard Rep. 561. v. Colefax, 4 Wash. C. C. R. 38. Pleadings and Practice in the Action of Ejectment. 109. 420. An outstanding legal estate cannot, in Pennsylvania, be set up to bar a plaintiff entitled to the equitable estate. Lessee of Delancey v. M'Kean, 1 Wash. C. C. R. 354. 421. After a judgment has been obtained in Pennsylvania, in an action of ejectment for the non-payment of rent, and possession has been delivered; the court will not, on motion, restore the possession, on tender of the rent due, particularly when the amount due is disputed between the parties. Lessee of Camac v. Allwine, 1 Wash. C. C. R. 466. 422. An action of ejectment cannot be maintained in the circuit court in Pennsylvania, upon an equitable title alone. Carson's Lessee v. Bou-a dinot, 2 Wash. C. C. R. 33. for, are united in the same declaration, jointly enter into the same common rule, and plead jointly, judgment may be given against them separately, if their separate possessions are found by the jury; and there is no difference whether the separate possession of each defendant is found by the jury, or stated in the demurrer to evidence. Lessee of Bayard v. Colefax et al., 4 Wash. C. C. R. 38. 429. Pending the action, the premises were sold under a mortgage, and purchased by M., to whom the defendant, for a valuable consideration, delivered possession, and afterwards went to the clerk's office and confessed judgment; on which a habere facias was issued, and possession delivered to the plaintiff. On motion, the judgment and execution were set aside, and the cause reinstated; but as the substitution of M. as the defendant would have ousted the court of its jurisdiction, the court ordered that the suit should stand in the name of the original parties, and that M. should give security for costs, &c. Lessee of Thomas v. Newton, 1 Peters' C. C. R. 444. 430. To a scire facias to revive a judgment in ejectment, for the term and damages, the defendant cannot plead a conveyance by the lessor of the plaintiff, made subsequent to the judg Lessee of Penn v. Klyne et al., 1 Peters' ment. C. C. R. 446. 431. If the plaintiff in ejectment declares for the whole, he may recover a part; or he may in declaration for part, recover less. Thus he may recover less, but he cannot recover more than is described in the declaration. Lessee of Patton v. Cooper, 1 Cooke's Rep. 133. 432. A count in a declaration in ejectment, on demise from a different party, asserting a different title, is not distinguishable, so far as respects the statute of limitations, from a new action. Sicard v. Davis, 6 Peters, 124. 423. The return of the marshal of service of the declaration in ejectment, stating that he had served it on H. and C. on the premises, by showing it to H. and delivering a copy at the dwell-a ing-house of H. and C. on the premises, said C. being absent, and the copy left in the presence of his wife; is defective, in not stating that a copy of the declaration was delivered to H., and another to the wife of C., and that the notice was read and explained to them. It should also have stated that H. and C. were tenants in common. Lessee of Campbell v. Harper et al., 3 Wash. C. C. R. 356. 424. If both tenants inhabit one house, and this appears by the return, it is sufficient to deliver one copy. Ibid. 425. Affidavit of service is necessary only where it is not done by an officer of the court. Ibid. 426. It is regular to take a rule upon the tenant in possession to appear on some day during the court to which the declaration is returned, and to sign judgment if such appearance is not entered within the term prescribed; reserving, however, to the tenant the right to have the judgment vacated, if an appearance be entered afterwards, and during the same term, if the session should continue beyond the period stated in the rule. Ibid. 427. It is not necessary that such rule should be served on the tenant. Ibid. 428. The correct rule relative to joining parties in an ejectment, is stated in 5 Johns. Rep. 278; that where two or more persons, holding separate and distinct possessions of the land sued 433. In an ejectment for a tract of land, where the property sued for is described by metes and bounds, the jury may find a verdict for part of the land, describing it in their verdict. The jury do no more than their duty, when they find a verdict according to the extent and limits of the title proved by the evidence. M'Arthur v. Porter, 6 Peters, 205. 434. The defendant in ejectment showed, The defendprima facie, a good title to recover. ant sets up no title in himself, but seeks to maintain his possession as a mere intruder, by setting up a title in third persons, with whom he has no privity. In such a case it is incumbent upon the party setting up the defence, to establish the existence of such an outstanding title beyond all controversy. It is not sufficient for him to show that there may possibly be such a title. If he leaves it in doubt, that is enough for the plaintiff. He has a right to stand upon his prima facie good title; and he is not bound to furnish any evidence to assist the defence. It is not incumbent on him, negatively, to establish the non-existence of such an outstanding title; it is the duty of the defendant to make its existence certain. Greenleaf's Lessee v. Birth, 6 Peters, 302. 435. If the mere naked fee is in the plaintiff Evidence in Ejectment. in an ejectment, it does not follow he can recover possession of the land in his action. City of Cincinnati v. White, 6 Peters, 431. 436. The declaration in ejectment was dated on the 22d of May, 1831, and the judgment was rendered on the 14th of January, 1832. The plaintiff in ejectment counted on a demise made Ly Amos Binney, on the 1st day of January, 1828. His title, as shown in the abstract, commenced on the 17th of May, 1828, which is subsequent to the demise on which the plaintiff counted. By the court: Though the demise is a fiction, the plaintiff must count on one which, if real, would support his action. Lessee of Binney v. The Chesapeake and Ohio Canal Company, 8 Peters, 214. 437. Where there are several co-heirs, lessors of the plaintiff in an action of ejectment, and joint and several demises are laid in the declaration, and one of the co-heirs, who had laboured under no disability, had failed to bring his action within the time limited by law, though his right of recovery will be barred by the act, it will not affect his co-heirs, who were under no disability. The proviso in the act of the legislature of Virginia is personal, and applies to all those who labour under any of the enumerated disabilities. Lessee of Lewis v. Barksdale, 2 Brockenbrough's C. C. R. 436. 4. Evidence in Ejectment. 438. If the plaintiff in his declaration claims the whole tract, a deed conveying an undivided interest is evidence. Doe v. M'Farland, 9 Cranch, 151; 3 Cond. Rep. 317. of the existence of a deed was to be confined to such a one as was originally asserted. Ibid. 444. In an ejectment, the plaintiff must show, and it is sufficient if he does show, a right of entry, or in other words, a right of possession. If he prove twenty years possession, or the seisin of his ancestor and a descent cast, it is sufficient prima facie; and unless defendant show a better right, the plaintiff must succeed. Hylton's Lessee v. Brown, 1 Wash. C. C. R. 204. 445. In ejectment for lands in Pennsylvania, against any other than the proprietary or his tenant, if a right of entry is proved, it is not neces sary for the plaintiff to show the title out of the proprietary. Lessee of Allen v. Lyons, 2 Wash. C. C. R. 475. 446. If the defendant rely upon the original title of the proprietor, he must show the title to be subsisting, either in the proprietor, or in himself derived from the proprietor. Ibid. 447. In Pennsylvania, if the plaintiff's title is founded upon a warrant only, without survey or purchase money paid, it is insufficient to entitle him to recover. Lessee of Vanhorne v. Chesnut, 2 Wash. C. C. B. 166. 448. If defendant sets up an outstanding title in a stranger, to preclude the plaintiff from recovering, he must show a subsisting and available title, on which the asserted owner might recover in ejectment if he were plaintiff. The defendant cannot avail himself of a title barred by the statute of limitations. Lessee of Foster v. Joice, 3 Wash. C. C. R. 498. 449. In an action of ejectment brought by a purchaser under a sheriff's deed, against the de439. Since the rule is universal, that a plaintiff fendant in the execution, the defendant cannot in ejectment must show the right to possession question the title. The plaintiff need show only to be in himself positively, and it is immaterial the judgment, execution, and the sheriff's deed. as to his right to recover, whether it be out of The sheriff stands in the situation of the attorthe tenant or not, if it be not in himself, it fol-ney of the party, appointed by law to sell and lows that a tenant is always at liberty to prove the title out of the plaintiff, although he does not prove it to exist in himself. Love v. Simms' Lessee, 9 Wheat. 515; 5 Cond. Rep. 659. 440. On a recovery in ejectment, the record of such recovery is not evidence in an action against third persons to establish the plaintiff's title; but it is admissible in connection with an executed writ of possession to show the fact of possession. Chirac v. Reinicker, 11 Wheat. 280; 6 Cond. Rep. 310. 441. In ejectment, possession, accompanied with a claim of ownership in fee, is prima facie evidence of such an estate. In such case, it is not the possession alone, but that it is accompa nied with the claim of the fee, which gives this effect, by construction of law, to the acts of the parties. Jackson v. Porter, 1 Paine, 457. 442. But such effect is limited to the claim actually made; and a claim of a different kind cannot afterwards be set up for the purpose of aiding the first. Ibid. 443. As where one claimed a title by an Indian deed, confirmed by an agent of the British government, who could not lawfully have confirmed it; it was held that no other deed, and no other kind of confirmation, could be set up to help the possession; and that any presumption convey, and his deed stands on the same footing with the deed of the party himself. Cooper's Lessee v. Galbraith, 3 Wash. C. C. R. 546. 450. A survey returned and accepted is, prima facie, presumed to have been legally made; and it is for him who denies it, to prove the contrary. In a survey of adjoining tracts returned and accepted, it is not necessary to produce the origi nal, or copies of connected plots, unless so far as required to identify the lots. Lessee of Griffith v. Bradshaw, 4 Wash. C. C. R. 171. 451. If a defendant sets up an outstanding title, he must show it to be a better subsisting title than the plaintiff's. Ibid. 452. Fifteen years possession under the act of assembly of Pennsylvania of 1785, to bar ejectment, applies only in cases where the possession had commenced when the law passed. Ibid. 453. An agreement signed by the agent of the lessor of the plaintiff in ejectment, for the sale and conveyance of the land to the defendant, cannot be given in evidence in a trial at law; it is at most evidence only of an equitable title. Lessee of Willink 7. Miles, 1 Peters' C. C. R. 429. 454. The patent issued on a military warrant, under the law of Virginia, is prima facie evidence that every prerequisite of the law was complied Trespass for Mesne Profits.-Habere Facias Possessionem.-Assumpsit for Lands. with. Bouldin and Wife v. Massie's heirs, 7 Wheat. 122; 5 Cond. Rep. 252. of the property cannot be recovered, yet he may proceed for damages for the trespass and for the mesne profits. Lessee of Brown v. Galloway, 1 Peters' C. C. R. 291. 455. Although the loss of a paper ought, in general, to be established before the contents can be proved, yet, where a patent has issued 464. In an action for mesne profits, the conupon an assignment of the warrant, and the legal fession of entry by the defendant in the ejecttitle is thus consummated, the assignment, hav-ment, is sufficient to enable the plaintiff to recoing performed its office, is no longer a paper ver; aliter, when the judgment in the ejectment essential to that title; and the same proof re- was recovered by default. Ibid. specting it cannot be demanded, which might be required, were it relied on as composing part of the title. It was not incumbent on the assignee to preserve it, after the emanation of the patent. Ibid. 456. In ejectment, possession accompanied with a claim of ownership in fee, is prima facie evidence of such an estate. In such a case, it is the possession being accompanied with a claim of title in fee, which by construction of law gives effect to the acts of the parties. 1 Paine's C. C. R. 457. 465. In an action of ejectment, the plaintiff may recover mesne profits, if he has previously notified the defendant of his intention to proceed for them, and thus prevented any surprise. Lessee of Battin v. Bigelow, 1 Peters' C. C. R. 452. 6. Habere Facias Possessionem. 466. The court will not rule the marshal to Lessee v. Kline, 4 Wash. C. C. R. 64. return the habere facias possessionem. Penn's 467. The defendant cannot call upon the marshal to return the writ of habere facias possesPenn's Lessee v. Kline, 4 Wash. C. C. R. 64; The sionem,_although the defendant may do so. United States v. .Slaymaker, Ibid. 169. 457. Where A was the real landlord of the premises in controversy in an ejectment, and employed counsel to defend the suit, but was not a party defendant on the record, the record of the recovery in the ejectment, when offered der a writ of habere facias, he is turned out by 468. If, after plaintiff is put in possession unin evidence in an action of trespass for mesne profits against B, is not conclusive evidence of the defendant; upon suggesting vice comes non title in the plaintiffs; but it is prima facie evi-alias habere facias: otherwise, if he is turned misit breve, he may obtain an attachment, or an dence thereof, and is evidence of the plaintiff's possession; but B may controvert the title of the plaintiffs. As to third persons, strangers to the suit, the record is evidence to show a possession of the property in the plaintiffs. Chirac v. Reinicker, 2 Peters, 613. 5. Trespass for Mesne Profits. 458. A recovery in ejectment is conclusive evidence in an action for mesne profits against the tenant in possession, when he has been duly served with a notice in ejectment, whether he appears and takes upon himself the defence, or suffers judgment to go by default against the casual ejector. Chirac v. Reinicker, 11 Wheat. 280; 6 Cond. Rep. 310. 459. In relation to third persons, the judgment in ejectment is not conclusive; and if they are sued in an action for mesne profits, they may controvert the plaintiff's title at large. Ibid. be 460. The action for mesne profits may maintained against the landlord in fact, who has been in possession of the land by means of his tenants, and who by his acts, commands or cooperation, aids in the expulsion of the plaintiff, and in withholding possession from him. Ibid. 461. The plaintiffs in such case are not estopped by the consent rule in the action of ejectment, by which another person was admitted to defend the action as the landlord. Ibid. out by a stranger. Ibid. 469. If the first writ be returned executed, the plaintiff cannot sue out an alias. If the writ, though executed, has not been returned, and an alias issues on the suggestion of the plaintiff, resistance to such writ is an offence. Aliter, if the first writ be returned. Ibid. 470. The habere facias possessionem cannot be executed after the return day; and if it be attempted, resistance to it is no offence against the act of Congress. Ibid. 471. After a conveyance by the lessor of the plaintiff to a third person, of land for which habere facias must issue in the name of the orijudgment had been obtained, a scire facias or a C. C. R. 446. ginal plaintiff. Lessee of Penn v. Kline, 1 Peters' 472. Where the lessor of the plaintiff dies after judgment in ejectment, the execution may issue in the name of the lessee, without the necessity of a scire facias. Ibid. ASSUMPSIT FOR USE AND OCCUPATION OF LANDS. 473. The remedy by action of assumpsit for the use and occupation of lands and houses, existed in Virginia before the cession of the District of Columbia to the United States. This remedy was declared by the Supreme Court of Virginia to have always been a part of the jurisprudence 462. In an action for mesne profits, the de- of that state, and has been recognised by her fendant may set off the value of his improve-legislation; not as a remedy created by statute, ments; but the value ought, in the first instance, to be deducted from the profits received before the date of the demise, and which the plaintiff is precluded from recovering. Hylton v. Brown, 2 Wash. C. C. R. 165. 463. When the term of the plaintiff in ejectment expires before the trial, although possession but as one enlarged and favoured, by making it a transitory, instead of a local action. Lloyd v. Hough, 17 Peters, 137. 474. Wherever the action of assumpsit for use and occupation has been allowed, it has been founded, and would seem necessarily to be founded, upon contract, either express or im |