Thornton v. Britton

Citations

• 144 Pa. 126
• 22 A. 1048
• 1891 Pa. LEXIS 588

Syllabus

<p>1. An action for mesne profits was brought in the name of a husband, and wife in right of the wife, but tried on the merits as though it had been brought in the name of the husband for use of the wife. The error, though formal, was material, but was amendable in the Supreme Court: § 2, act of May 20, 1891, P. L. 101.</p> <p>2. The return of the summons, in the preceding ejectment in which the plaintiff had judgment for the land, was conclusive evidence of the possession of all the defendants at the time of service, and presumptive evidence of their continuance in possession until overcome by evidence to the contrary.</p> <p>3. The record of the ejectment being in evidence, in the action for mesne profits against the same defendants, the trial court could not say to the jury, as matter of law, that there was no evidence connecting one of the defendants with the possession of the other.</p> <p>4. Testimony of one of the defendants, tending to show merely that he alone had an actual residence on the land, during the time claimed for, was insufficient to rebut the presumption of his co-defendant’s joint possession and liability: Sopp v.' Winpenny, 68 Pa. 78; Miller v. Henry, 84 Pa. 33, distinguished.</p> <p>5. Where it is shown that a witness whose deposition was read upon a former trial, between the same parties upon the same subject-matter, though residing in the county is aged and infirm, the admission of the deposition in the action for mesne profits is subject to the lawful discretion of the trial judge.</p>