Opinion
August Term, 1853.
After recovery in ejectment, an action for mesne profits may be brought in the name either of the nominal plaintiff, or of his lessor, but it cannot be brought in the name of both.
THIS was an action of trespass for mesne profits, after a recovery in ejectment, and was brought in the joint names of John Den and W. A. Blount and others. Plea, general issue. The only question raised on the trial before Dick, J., at the Special Term of the Superior Court of BUNCOMBE, in June last, was whether the lessor and lessee in the ejectment could be joined as plaintiffs in this action; and his Honor being of opinion with the defendant, that they could not, there was judgment of nonsuit accordingly, and the plaintiffs appealed to the Supreme Court.
No counsel for plaintiffs in this Court.
W. W. Avery for defendant.
That the lessors of the plaintiff, after a recovery in ejectment, may bring an action of trespass vi et armis for the mesne profits, either in their own names or in the name of the nominal plaintiff, is too well known to require the citation of any authority for its support. This is the first instance which has come to our knowledge, of an attempt to unite the real and nominal plaintiffs in such action, and we cannot discover any principle upon which it can be maintained. It (402) introduces, without any necessity or convenience, the name of a person as one of the plaintiffs, who has no interest in the recovery, and that is a good cause for a nonsuit, upon the trial, under the general issue. 1 Chit. Pl., 76.
When the lessors do not choose to avail themselves of the privilege, awarded to them by the practice of the court, of using the name of the nominal plaintiff, in their action to recover the mesne profits, but proceed in their own names, there is no reason why they should not conform to the settled rules of pleading. Not having done so in this case, the judgment of nonsuit was right and must be affirmed.
PER CURIAM. Judgment affirmed.