1. I think that the question referred should be answered in the negative. Having regard both to the practice of the Courts and to the language of the Legislature, it seems to me, that, in this country, the policy of the law has always been to allow a plaintiff to enforce a claim for possession of land and for mesne profits, either in one suit or two, as he may think proper; but at the same time to induce him, if there is no reason to the contrary, to dispose of his whole claim in one suit, only.
2. And there seems much good sense in this policy; because in the generality of such cases, the plaintiff's right to mesne profits follows his right to possession, in the same way that in a money claim, a right to interest follows the right to the principal sum. The Court which decides the question of possession has generally all the materials before it to decide at the same time the question of mesne profits; and it would be only entailing both upon the Court and the parties unnecessary expense and trouble, to try the claim in two different suits.
3. A rule of the old Sadr Court, dated the 15th of June 1849, was as follows:
The Court are pleased, upon re-consideration, to cancel prospectively the rule laid down in the last sentence of paragraph 6 of Circular Order No. 29, dated 11th June 1839, which requires that, in actions for real property, the mesne profits, unless relinquished, shall be included in the amount at which the suit is laid, and to intimate that they may be made the subject of a subsequent suit, anything in Rule 3, paragraph 4 of Circular Order No. 28, dated 30th September 1874, notwithstanding.
4. It would appear from this rule, that previously to the 15th of June 1849, a petitioner was bound to sue for possession and mesne profits in one suit; but that, after that date, he might, if he pleased, bring a separate suit for the mesne profits.
5. In accordance with this practice, the Legislature, in passing the Civil Procedure Code of 1859, seem to have contemplated the joinder, under ordinary circumstances, of claims for possession and mesne profits in one suit. Sections 8, 9, and 10 of that Code, which were so much discussed during the argument, appear to me to favour that view.
6. Section 8 allows several causes of action to be joined in one suit, provided they are by and against the same parties, and their total value does not exceed the jurisdiction of the Court.
7. Section 9 provides, that if two or more causes of action are joined in one suit, the Court may order separate trials, if it considers that such causes of action cannot conveniently be tried together.
10. And then Section 10 enacts, that, for the purposes of Sections 8 and 9, a claim for possession and for mesne profits shall be deemed to be distinct causes of action. This, I think, implies that a claim for possession and mesne profits, when joined in one suit, would, but for this last section, be considered as one cause of action; but that, for purposes of jurisdiction, and of allowing the Court to order separate trials, if necessary, such a claim was to be considered as embracing distinct causes of action.
11. It must be borne in mind that, in both the old and new Codes, the Courts were at liberty, in a suit for possession of land, to give mesne profits as well as possession, although the mesne profits were not claimed in the plaint; and Section 8, as I take it, was intended to restrain the Courts from giving mesne profits, where the value of the land recovered, plus the mesne profits awarded, would have exceeded the jurisdiction of the Court. See Section 196 of the old Code, and Section 211 of the new Code.
12. These same sections, which I have just quoted (196 and 211) afford also, I think, another strong argument in favour of my view.
13. It is admitted, that when, under the power thus given to the Courts, mesne profits are decreed as from the date of suit, the value of the land, plus the amount of the mesne profits awarded, is for the purposes of stamp-fee to be considered as one claim only. The plaintiff in such a case has only to pay an additional fee in proportion to the amount of the mesne profits.
14. Then let us suppose a case, where the plaintiff claims not only possession, but also mesne profits from the date of suit. Is he to pay a larger amount of stamp-fee than he would have paid if he had sued for possession only, and the Court had awarded the mesne profits without his asking for them? Why should he be charged upon a different principle in the two suits, when his claim is virtually the same in each? It seems to me that this would be an absurdity.
15. Then let us proceed a little further. Let us suppose that the plaintiff claims both possession and mesne profits, not from the date of the suit, but from a period antecedent to the date of the suit. Is he to pay stamp-fee in that suit as upon two distinct claims, when, if he had claimed mesne profits only from the date of suit, he could only be charged stamp-fee for the one claim? That again would be most unreasonable.
16. The Court could only give him the mesne profits from the time when he was entitled to possession, and whether he was so entitled as from the date of suit, or from a time antecedent to the date of the suit, the nature of his claim must be the same. For the purposes of the Court-Fees Act, the claim can hardly consist of several and distinct causes of action in the one case, and not in the other.
17. And then lastly, another strong argument in favour of my opinion consists in this. The Court-Fees Act of 1870 has now been the law of the land for nearly twelve years. It is admitted, that, until quite lately, claims for possession and mesne profits have always, for the purposes of stamp-fee, been treated as one claim only. This appears to have been the universal practice, both in the Mofussil Courts and in the High Court; and it can hardly be, that, for all these years, the Courts and the Government should have been under a mistake.
18. These suits for possession and mesne profits are matters in this country of constant occurrence. The Government must have been well aware of the construction which had been put by the Courts upon Section 17 of the Court-Fees Act; and if, being aware of it, they have desisted all this time from any legislative action to change the practice, that seems a strong reason for believing, that they considered the practice to be in accordance with the intentions of the Legislature.
19. There is a very wholesome maxim of law 'optimus legis interpres consuetudo'; and Mr. Broome in his work on Legal Maxims, 2nd edition, page 534, says this: 'Where a Statute uses language of doubtful import, the acting under it for a long term of years may well give an interpretation to that obscure meaning, and reduce that uncertainty to a fixed rule.'
20. And I take it, that this principle is especially applicable, where the subject of interpretation is a matter of every-day occurrence. And when we find that, for a series of eight or ten years, a law which imposes a heavy tax upon litigation has received a particular interpretation in favour of the suitor, and a course of practice has prevailed for years, throughout the whole country, in accordance with that interpretation, I think that any Court of Justice ought to be very slow in changing that interpretation or course of practice to the prejudice of the suit or, unless it sees clear and weighty reasons for so doing.
21. Having regard to the nature of this reference, of course there will be no order as to costs.