Davis v. Doe

2 Ind. 599

• Court: Indiana Supreme Court
• Decided: June 3, 1851
• Status: Published

Opinion

Perkins, J.

Trespass for mesne profits. Certain special pleas were pleaded, which were probably a good defence, though we need not decide the point, as the general issue was also pleaded. Those special pleas were demurred to, and the demurrers sustained. As the defence set up in those pleas could have been made under the general issue, and the evidence is not upon the record, we cannot reverse the judgment. If the defence set up in those pleas did not, in fact, exist, the defendant was not harmed, in the final result, by the decision on the demurrers. If the defence did exist, it should have been offered under the general issue, and if then rejected, and a bill of exceptions showed the fact, the error could be corrected here. The action for mesne profits is an equitable one, in which every defence may be made under the general issue. Jackson v. Loomis, 4 Cowen. 168. — Adams on Ejectment, late edition, notes to title, “Mesne Profits.” The judgment below was for the plaintiff.

J. Brown, for the appellant. J. Ryman, for the appellee.

Per Curiam.

The judgment is affirmed with costs.