The opinion of the Court was delivered by
Gibson, C. J. —The paper executed by George Flicker evidently did not pass the title. Though containing potent words of present transfer, as'well as a formal clause of habendum, it was obviously intended for a memorandum, for it has the immethodicalness of one. By the name of a more formal assignment, he reserved the execution of the conveyance till the monéy-should be paid; for what would have been the value of the arrangement to him, if the title had passed in the mean' time 1 The writing in Coleman v. Stouffer, (1 Yeates, 393,).;which, with the exception of the habendum, had all the features of the present, was treated as an agreement. Then as to the damages.
It is, perhaps, the better opinion, that by the English practice, mesne profits eo nomine, were never recovered in ejectment, because the trespass was not laid with a continuando; yet, as not only the expulsion, but the detainer also, was usually laid as a part of the gravamen, it is probable that substantial damages were given for it, else the plaintiff, previously to the time when the term began to be .recovered, must have been remediless, since he could not acquire a constructive possession to found an action of trespass. In Pennsylvania, however, the practice of assessing damages for the mesne profits directly, began at an early date — probably before the secession of Delaware, where it prevails to this day. That it prevailed with ús pretty generally at the close of the revolution, is shown in the opinion prepared by Chief Justice M‘Kean, in Boyd's Lessee v. Cowan; notwithstanding which, it seems to have been discontinued, in consequence, perhaps, of a doubt raised in the professional mind, by the sentiments of his brethren, who, I-was told by the late Chief Justice Yeates, were prepared to overrule him. As no judgment was pronounced, the mere formation of their opinion is entitled to nothing like the respect which is due to actual adjudication ; and even its numerical preponderance on the particular occasion, is compensated by the antagonist opinion said to have been held by their predecessors. As far, then, as the extra-judicial opinion of the bench has come to us, it is in favour of what I take to be the ancient practice, which, to say the least, is not discountenanced by any thing that fell from Mr. Justice Duncan, in Osbourn v. Osbourn. The introduction of the new practice is entitled to the less weight, because, as there were few ejectments for cultivated land, there was little to turn the attention of the bar to the old one. Had the objections to it been examined, they would have been found to rest on nothing more solid than the form which the -action, had received from the plastic hand of the Courts, whose power over it, for purposes of convenience, might have beep still more efficiently exerted. Whatever force there may have formerly been in the assertion, that only nominal damages can be recovered of a nominal defendant, it is sufficient for the present to say, that our statutory ejectment is an actual proceeding betwixt actual parties. , Besides, *240substantial damages for mesne profits might as well be given against a nominal defendant, as substantial damages for the ouster, which, it is agreed, are recoverable by the English practice. But then they are recoverable only as for a trespass laid with a continuando, which the tort, in an ejectment, is not. This is the only thing which presents the show of an obstacle. It might, however, have readily been removed by those who first adapted the machinery of the action to purposes of practical usefulness, but who seem not to have been sufficiently alive to the vexation and expense of consecutive actions, whose aim had been as well attained by one: much more readily may it be removed by us who have power by statute to devise new writs and forms of practice. Now we should be overnice did we make the want of a continuando in our writ the ground of a limited practice under it, when, though nominal damages ai’e constantly assessed to carry costs, the statute has struck every thing like tort or trespass out of it. We pay little respect to congruity of form in an action to which, though charging .nothing but actual possession of the plaintiff’s land, the plea is directed to be not guilty — especially as a notice or a suggestion would sufficiently apprise the defendant of the matter to be answered. It would be idle to be restrained by want of form in an action which has no form; or to be guided in practice by forms which have been abolished. Tolerating, as we do, a recovery of at least nominal damages for a supposititious ouster not even alleged in the writ, our endurance will not be much more severely tasked by sanctioning a recovery of mesne profits without an allegation of a trespass with a continuando. The usefulness of such a practice is found in our sister states to outweigh its inconsistency even with common law forms; and its justice is shown by the statute of limitations, which, as it is generally asserted, and as it has been ruled in Hare v. Fury, (3 Yeates, 13,) by the judges of this Court at Nisi Prius, bars a recovery in trespass for all but the last six years. Now I do not say positively that the law is thus settled; but notwithstanding the decision in Murphy v. Guion, (1 Carolina Law Repository, 94,) that the statute begins to run only when possession is taken under a recovery in ejectment, all the text writers follow the dictum in Buller's Nisi Prius, that it runs from the several parts of the trespass. It seems to have been conceded in the case quoted, that an entry without process would give a retrospective possession sufficient for the purposes of trespass; but in that aspect the main conclusion arrived at would be inconsequent, for the plea of actio non would be maintained by showing that the cause of action had not accrued for the first time within the period immediately preceding the writ. Contrary to the admission in the quoted case, however, it seems to be settled that trespass for mesne profits lies not before entry by judgment — at least it is so asserted by Lord Hakdwicke in Norton v. Fricker, (1 Atk. 252.) If then, a plaintiff who has been long *241baffled, may not maintain an action for mesne profits before he has recovered the possession, and if he can -then have damages for no more than the last six years, it is evident that there is a defect in the process of the law which calls for amendment. Could he even have trespass'on an actual^ entry pending, his ejectment, it would be oppressive to burthen him with successive actions to cover intermediate periods which might else be excluded from recovery by the statute — to say nothing of the repugnance there might be betwixt success on these and subsequent defeat in the" struggle for the possession.
In our statutory ejectment, therefore, the plaintiff must be allowed to go for the possession and the profits together; and the remaining inquiry regards the time for which he .shall be permitted to recover. In Starr v. Pease, (8 Connecticut Rep. 541,) the Supreme Court of that state, bounded it by the exit of the writ; but aá the accretion of subsequent profits might still require a supplemental action, and as a part even of these might be barred'pending the ejectment, the rule of that Court might not answer all the purposes of justice. Departing from-the English practice in a single particular, it would be idle to stop short of full relief; and we are bound to allow profits to be recovered for the whole time which has preceded the verdict. Nor is there any lack of analogy for it. By .the "statute of Merton, a widow is entitled to damages for detention of dower, from the death till the judgment;- yet damages are always given by an inquest on a judgment of seisin by default, tijl the taking of the inquisition. Even interest on a penalty or promissory note, is .given as damages for the detention of the debt till the time of the verdict; and thus we she, that though no part of the cause of action must appear in the pleadings to have arisen after the inception of the suit, the principle does not prevent the recovery of an accessory which has accrued subsequentlyconsequently the damages here were well assessed.
Rule discharged.