¶1The decision of the Court overruling the demurrer, is the first error assigned. The correctness of the decision depends on the nature of the plea. If that plea was a perpetual bar to the action, the replication of special matter in avoidance, was inadmissible; but if the judgment set forth in the plea, was, in its nature, limited to the possession of the premises for the time being, this consequence does not follow; for a superior right may be shown in an action of a higher nature, which, without controverting the judgment of the justices, settles the rights of the contending parties to the possession of the premises, on principles which' may have been without the jurisdiction of the Court, in the action of forcible entry and detainer. And such is the fact in the present instance. The judgment of the justices was a good plea in bar to the action; but its effect was subject to be destroyed by the judgment in the action of eject-, ment, which placed the rights of the parties on a more permanent foundation. The replication was, therefore, a conclusive answer to the plea, and the demurrer correctly overruled.
¶2The failure of the Court to have the issue on the force and arms tried, is also assigned as error; but on looking into the books we can see nothing in the objection. The issue is immaterial; it never stands alone, but rests for support on the justification that follows, and invariably shares its fate, standing or falling with it
¶3The refusal of the Court to admit the evidence offered in mi« tigation of damages, is also assigned for error. In this the Circuit Court acted incorrectly. The plaintiff in this action has a right to recover the rents and profits of the premises, during the time be has been kept out of possession', together with costs; but the jury are not restricted to the rents, profits, and costs, but may exceed them, and give damages by way of punishing the ejectors
¶4The judgment is reversed, and the inquisition set aside, with costs. Cause remanded for further proceedings.
¶5 Trespass q. c. f. To the force' and arms, &c., the defendant pleaded not guilty; and as to the breaking, &c., a justification; upon which issues were joined. The plaintiff contended he had the right to begin, as the affirmative of one of the issues lay upon him. Bayley, J., said there was but one issue to be tried; the denial of the force and arms was not with a view to the cause, but wasintroduced to barlhe claim on the part of the crown, to a fine for the trespass, and was quite dehors the cause, as between'the parties;, in practice nothing was ever found upon that issue. — The defendant accordingly opened his case. Jackson v. Hesketh, 2 Stark. Rep. 518.
¶6 The action being trespass vi et armis, the verdict need not be confined to the rent of the premises, although the action is said to be for the rents and profits; but extra damages may be given, according to the circumstances of the case. Goodtitle v. Tombs, 3 Wils. 118. — Adams on Ejectment, 337,338.