#### Buntin and Another *v.*Duchane.

In trespass *lot mesne profits,*the recovery in *ejectment is*conclusive against the defendant, as to title, from the time of the demise.

The issue on the *vi cl armis*in trespass, is only matter of form; and in practice nothing is ever found on that issue.

In an action for *mesne*profits, the defendant may show, in mitigation of damages, that his possession was under a judgment of a competent tribunal»

ERROR to the *Knox*Circuit Court. — Trespass for *mesne profits*by *Duchane*against *Buntin*and *Dubois,*after a recovery in ejectment. The declaration was not only for the rents, issues. *57and profits, but for specified injuries done to the premises, and for the costs of the ejectment. The defendants below, as to the force and arms, pleaded not guilty; and as to the residue, they pleaded in justification, a judgment in their favour against the plaintiff, by two justices of the peace, in an action of forcible entry and detainer. The plaintiff joined issue as to the force and arms, and replied to the justification, a subsequent recovery against the defendants, in an action ofejectment. General demurrer to the replication, and judgment for the plaintiff A writ of inquiry was awarded, without any notice being' taken of the issue, as to the force and arms. Upon the execution of the writ of inquiry, the defendants offered to prove, in mitigation of damages, that they had entered into possession by virtue of the judgment in forcible entry and detainer, but the evidence was objected to, and the objection sustained. The damages were assessed at 576 dollars, and the plaintiff (defendant in error) had judgment accordingly.

Holman, J.

The decision of the Court overruling the demurrer, is the first error assigned. The correctness of the decision depends on the nature of the plea. If that plea was a perpetual bar to the action, the replication of special matter in avoidance, was inadmissible; but if the judgment set forth in the plea, was, in its nature, limited to the possession of the premises for the time being, this consequence does not follow; for a superior right may be shown in an action of a higher nature, which, without controverting the judgment of the justices, settles the rights of the contending parties to the possession of the premises, on principles which' may have been without the jurisdiction of the Court, in the action of forcible entry and detainer. And such is the fact in the present instance. The judgment of the justices was a good plea in bar to the action; but its effect was subject to be destroyed by the judgment in the action of eject-, ment, which placed the rights of the parties on a more permanent foundation. The replication was, therefore, a conclusive answer to the plea, and the demurrer correctly overruled.

The failure of the Court to have the issue on the force and arms tried, is also assigned as error; but on looking into the books we can see nothing in the objection. The issue is immaterial; it never stands alone, but rests for support on the justification that follows, and invariably shares its fate, standing or falling with it (1).

*58*McDonald*and *Tails,*for the plaintiffs.

*Dewey*and *Call,*-for the defendant.

The refusal of the Court to admit the evidence offered in mi« tigation of damages, is also assigned for error. In this the Circuit Court acted incorrectly. The plaintiff in this action has a right to recover the rents and profits of the premises, during the time be has been kept out of possession', together with costs; but the jury are not restricted to the rents, profits, and costs, but may exceed them, and give damages by way of punishing the ejectors (2). The defendants, therefore, had an unquestionable right to show that they became possessed of the premises quietly, and by apparent right; and were not guilty of such force or violence as merited vindictive damages.

Blackford, J., expressed no. opinion, having been of counsel in the cause.

*Per Curiam.*

The judgment is reversed, and the inquisition set aside, with costs. Cause remanded for further proceedings.

(1)

 Trespass q. *c. f.*To the force' and arms, &c., the defendant pleaded not guilty; and as to the breaking, &c., a justification; upon which issues were joined. The plaintiff contended he had the right to begin, as the affirmative of one of the issues lay upon him. *Bayley, J.,*said there was but one issue to be tried; the denial of the force and arms was not with a view to the cause, but wasintroduced to barlhe claim on the part of the crown, to a fine for the trespass, and was quite dehors the cause, as between'the parties;, in practice nothing was ever found upon that issue. — The defendant accordingly opened his case. *Jackson*v. *Hesketh,*2 Stark. Rep. 518.

(2)

 The action being trespass *vi et armis,*the verdict need not be confined to the *rent*of the premises, although the action is said to be for the *rents and profits;*but extra damages may be given, according to the circumstances of the case. *Goodtitle v. Tombs,*3 Wils. 118. — Adams on Ejectment, 337,338.