Poston v. . Henry

Supreme Court of North Carolina

Poston v. . Henry

33 N.C. 301

DecidedAugust 5, 1850

StatusPublished

This text of 33 N.C. 301 (Poston v. . Henry) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Poston v. . Henry, 33 N.C. 301 (N.C. 1850).

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Opinion

Ruffin, C. J.

The Court thinks the objection good.— A recovery in ejectment will not support an action for mesne profits; for it is trespass for an injury to the possession, and, therefore.it is necessary the plaintiff should show, that he had regained the possession, either by being put in upon process, or let in. In this case, that is not shown. We cannot conjecture, why the ejectment was tried as it was. Rut so it is, that the verdict and judgment are on the count on Robert Poston’s demise, and the writ of possession accords with them. In fact, however, Robert Poston has never been in under those proceedings; and, without further evidence of the connection between that person and Jones, the Court cannot presume that Jones was the agent of Poston to receive the possession. • It is true, they were both lessors of the plaintiff in ejectment. But that was by separate demises of the whole and imports several titles; so that it cannot be seen, that the possession of one of them is that of the other, and consequently the present action cannot be maintained, and it becomes unnecessary to consider the other points made.

Per Curiam. Judgment reversed and venire de nouo.

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Ruffin, C. J.

The Court thinks the objection good.— A recovery in ejectment will not support an action for mesne profits; for it is trespass for an injury to the possession, and, therefore.it is necessary the plaintiff should show, that he had regained the possession, either by being put in upon process, or let in. In this case, that is not shown. We cannot conjecture, why the ejectment was tried as it was. Rut so it is, that the verdict and judgment are on the count on Robert Poston’s demise, and the writ of possession accords with them. In fact, however, Robert Poston has never been in under those proceedings; and, without further evidence of the connection between that person and Jones, the Court cannot presume that Jones was the agent of Poston to receive the possession. • It is true, they were both lessors of the plaintiff in ejectment. But that was by separate demises of the whole and imports several titles; so that it cannot be seen, that the possession of one of them is that of the other, and consequently the present action cannot be maintained, and it becomes unnecessary to consider the other points made.

Per Curiam. Judgment reversed and venire de nouo.

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Bluebook (online)

33 N.C. 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poston-v-henry-nc-1850.