Thus far we have treated only of damages for the breach of personal contracts, or for personal torts. In real actions, strictly speaking, damages were not demanded or given at common law; (k) one writ, that of estrepement, after judgment, gave compensation in some cases;(l) but damages were given by early statutes, and properly belong to all mixed actions, and to personal actions relating to land, (m) In ejectment they are in general nominal only; (n) and a subsequent action of trespass is brought for the mesne profits, (o) But where the plaintiff has a title and estate which would maintain his action, and the estate terminates or the title expires while the action is pending, actual damages may be recovered, including mesne profits, (p) Sometimes trespass for mesne profits is brought, not only for them, but to try the title to the estate, (q)

The question, what damages may be recovered, is not only determined in this as in other cases by the principle of compensation, but this principle is carried very far. Thus, the rent of the land is barely prima facie evidence of its annual value or * profit, and the jury may exceed it very much, indeed, to whatever extent is necessary to give the plaintiff adequate compensation, (r) The damages have been held to be "as uncertain as in an action of assault;" and, because the action is in fact as well as form for a tort, bankruptcy is no sufficient plea in defence, (s) So, to make up the value, the rents have been allowed, and interest upon them, (t) and the costs of the litigation by which the title was established, (u)

(k) Sayer on Damages, p. 5; Stearns on Real Actions, 390.

{l) 2 Inst. 329; 3 Bl. Com. 225; Sayer on Damages, 34

(m) 20 Hen. Ill c. 3; 52 Hen. III. c 16: 6 Ed I. c 1; Pilford's case, 10 Co. 115; Stearns on Real Actions, 389 et seq.

(n) Van Alen r. Rogers, 1 Johns Cas. 281; Harvey v. Snow, 1 Yeates, 156.

(o) Van A lea u Rogers, 1 Johns. Cas. 281 . Adams on Ejectments, 326. In some States mesne profits are recovered in the action of ejectment. Bovd r. Cowan, 4 DalL 138; Battin v. Bigelow, Pet C. C 452; Starr u Pease, 8 Conn. 541; Denn v. Chubb, 1 Coxe, 466; Beach v. Beach, 20 Vt 83; Eclgerton u Clark, id 264. Bat the recovery of mesne profits in the action of ejectment has been held to be no bar to a subsequent action for trespass for wanton injuries. Walker i\ Hitchcock, 19 Vt 634. See GiU t. Cole, 1 Harris & J. 403.

(p) Thuretontr Grey, 2 Stra. 1056; Robinson v. Campbell, 3 Wheat 212; Wilkes v. Lion, 2 fcowen, 333; Brown v. Galloway, Pet. C. C 291, 299; Alexander o. Herr, 11 Pa. 537. See Stockdale v. Yonng, 3 Strobh. 501.

(q) Bullock v. Wilson, 3 Porter, 882; Sumpter r. Lehie, 1 Consist R. 102. In Massachusetts, both the land and the mesne profits are recovered by a writ of entry. Rev. St ch. 101; Washington Bank p. Brown, 2 Met. 293.

(r) Goodtitler. Tombs, 3 Wilson, 118; Dewey v. Osborn, 4 Cowen, 329; Draxel v. Man, 2 Pa. St 271, 276; Adams on Eject. 328.

The common law, unlike the Roman law and the modern codes founded upon it, gives to a bona fide holder, without title, no claim for his improvements against the true owner. If he loses the land, he loses with it all the improvements which have become fixed to the realty, (v) In many of our States the civil law principle has been adopted, and statutory provisions made, by which such defendant, being ousted by a better title, may recover the value of his improvements, as assessed by a jury of the vicinage, (w) Besides this, however, it has been held in this country, that a holder of land in entire good faith, if ousted by a better title of which he was ignorant, and afterwards called upon to refund the mesne profits, may set off his improvements against the mesne profits, (x) But such improvements must be in their nature permanently beneficial to the estate, (y) In that case a Court of Equity will sustain, against the actual owner, after recovery of the premises, a bill brought by a bond fide possessor, for the value of his improvement (z)

* A dowress, from whom land is withheld, may recover damages, (a) But when the suit is brought for land

(s) Goodtitle v. North, Dong. 584, per Bullet, J.

(t) Jackson v. Wood, 24 Wend. 443.

(u) Astin v. Parkin, 2 Bnrr. 665. The rale appears to be, that where the costs have Seen taxed in the ejectment suit, nothing more than those can be recovered. Doe v. Davis, I Esp. 358; Doe v. Hare, 4 Tyrw. 29. See ante, page * 164, n. (j). But where they have not been taxed, as in case of a judgment by default, or where there is, a writ of error, evidence may be introduced to show their amount. Nowell v. Roake, 7 B. & C. 404; Brooke v. Bridges, 7 J. B. Moore, 471; Doe v. Hud dart, 5 Tyrw. 846, 2 Cromp. M. & R. 316; Baron r. Abeel, 3 Johns. 481. See Alexander v Herr, 11 Pa. 537.

(v) Powell v. M. & B. Manuf. Co. 3 Mason, 369; 2 Kent's Com. 334-338.

(w) Mass. Puh. Sts. ch. 173; Ohio R. St ch. 77; N. H. R. St. ch. 190; 2 Kent's Com. 335, 336; Lamar v. Minter, 13 Ala. 31; Bailey v. Hastings, 15 N. H. 525.

(x) Murray v. Gouverneur, 2 Johns. Cas. 438, 441; Jackson v. Loomis, 4 Cowen, 168, Green v Biddle, 8 Wheat 1, 81, citing Coulter's case, 5 Rep. 30; Hylton e. Brown, 2 Wash. C. Cf. 165; Dowd r. Faacett, 4 Dev. 92, 95; Beverly

9. Barke, 9 Ga. 440; Burrows v. Pierce, 6 La. An. 303, 308.

(y) Worthington t*. Young, 8 Ohio, 401; Matthews c. Davis, 6 Humph. 324.

(z) Bright 9. Bovd, 1 Story, 494, 2 id. 605; Herring v. Pollard, 4 Humph. 362; Matthews e. Davis, 6 id. 324; Martin v. Atkinson, 7 Ga. 228; Bryant v. Ham brick, 9 Ga. 133; 2 Story's Eq. Juris. §§ 799 6, 1237, 1238. But see Putnam v. Ritchie, 6 Paige, 390, 403.

(a) The law on this subject, as it stood under the statute of Merton, was clearly stated by Booth, J., in Layton r. Butler, 4 Hairing. Del. 507, 509."' Dower unde nihil habet is a real action, in the natnre of a writ of right, and therefore, by the common law, no damages were recover-' able by the wife for its detention. By the statute of Merton it was enacted, that where widows were efforced of their dower, and cannot have it without pita, they who efforced them of their dower, of the lands whereof their husbands died seised, shall, upon the recovery thereof by such widows, yield them damages; that is to say the value of the whole dower (namely, the one-third of the annual profits of the land), from the death of the husband unto the day that the widow, by upon which valuable improvements have been made, by building houses, for instance, either by the alienee of the husband or by the heir, it is not positively settled whether she has damages to cover her claim to dower in these improvements, or must be limited to her dower in the land, as the purchaser took, or the heir inherited it There are certainly strong reasons, if not conclusive authority, in favor of the principles applied to this question in some of our courts; namely, that where the heir adds improvements to the estate, the widow shall have her dower in them; but not in the improvements * made by a purchaser; (b) but that she shall have, against a purchaser, the judgment of the conrt, has recovered seisin of her dower. Where the husband has aliened the land, no damages can be recovered by the widow against the alienee without a demand of dower and a refusal, and then only from the time of making the demand. Where the husband dies seised of the inheritance^ as the possession immediately devolves on the heir, damages may be recovered against him from the time "of the husband s death. But according to Co. Litt. 32 b, the heir may save himself from damages if he comes into court upon the summons the first day, and pleads that he has always been ready and yet is ready to render dower, and prays that she may not have damages; in which case, if the wife has not requested her dower, she lores her damages. But if to the plea she replies a demand of her dower, and issue is thereupon taken and found for her, she recovers damages, from the death of her husband. If the heir succeeds on the issue, he is saved from dimages from the time of the husband's death; but still the widow recovers damages from the teste of the original writ, which iu law is considered as a demand. So, too, in the case of the husband's alienee, damages are given from the time of the suing out or the writ, although no demand was in fact . made. It seems necessary, therefore, to entitle the widow to damages, either against the alienee or the heir, that she should make a demand of her dower previous to bringing her action of dower unde nihil habet. By the damages in this action are meant the one-third of the annual profits of the land, beyond all reprises (that is, after deducting land-taxes, repairs, &c), and also such damages as the wife has sustained by the detention of her dower, which, in the inquisition taken upon a writ of inquiry, are usually assessed severally, although it is said damages may be given generally, without finding the value of the land. See Watson v. Watson, 10 C. B. 3, 1 Eng. L. & Eq. 371. In many States the damages for the detention of dower are regulated by statutes. N. Y. Rev. St. vol. ii. pt. 2, tit. 3, p. 151; Mass. Pub. Sts. ch. 174; 4 Kent, Com. 65. It seems that in some of the States the statute of Merton is held not to be in force, and no damages are given. Hey-ward v. Cnthburt, 1 McCord, 386; Bank of U. S. v. Dunseth, 10 Ohio, 18.