1. The action for mesne profits does not accrue until possession is given after judgment in an action of ejectment, and from that time only the statute of limitations begins to run.
2. Where the law is clearly for one party, the court will grant a new trial, though several juries have found verdicts for the other.
3. After a new trial granted, the court may, in its discretion, permit the pleadings to be amended on both sides.
JOHNSTON, J., said:
As to the first ground on which it is moved for, namely, that the statute of limitations should have protected the defendant for all but the last three years, it is not tenable. Judge Buller, it is true, has said so, and it has been followed and copied into other books. There is, however, no adjudged case to that effect, and I do not consider myself bound by the dictum of any judge, however respectable. The reason of the thing is against that position. The plaintiff cannot bring his action till after the judgment, ejectment, and possession delivered or obtained in consequence of it. And shall he be barred for not bringing his action in time, when the law itself for that time prohibits the bringing his action? It would be absurd to say so. The direction given to the jury was proper. As to the other ground, evidence has been received and damages given for cutting down of trees, when no charge for the cutting down of trees was laid in the declaration. Such evidence ought not to have been received, although the plaintiff did not object to it. The verdict, therefore, improper and unjust, being founded on evidence which was not admissible. He has had a new trial before, but still I think he ought now to have one for the cause alleged. Let the verdict be set aside; but the plaintiff may have a rule to show cause why the declaration should not be amended.
A rule was accordingly taken, and on the last of the term, after argument, the court permitted the declaration to be amended by adding a count for the cutting down of trees, and the defendant to add the plea of liberum tenementum.
NOTE. — Upon the main point, see S. c., 6 N.C. 238, and 4 N.C. 12. Upon the question of the new trial, see Commissioners of Fayetteville v. James, 5 N.C. 40; S. c., 1 N.C. 637; Hamilton v. Bullock, post, 224; Jones v. Ridley, 4 N.C. 280. As to the amendment, see the cases referred to in the note to Simpson v. Crawford, 1 N.C. 55.