Page:United States Reports, Volume 24.djvu/288

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A counsel or attorney is not a competent witness to testify as to facts communicated to either by his client, in the course of the relation subsisting between them, but may be examined as to the mere fact of the existence of that relation.

The action for mesne profits may be maintained against him who was the landlord in fact, who received the rents and profits, and resisted the recovery in the ejectment suit, although he was not a party to that suit, and did not take upon himself the defence thereof upon the record, but another did as landlord.

A recovery in ejectment is conclusive evidence in an action for mesne profits against the tenant in possession, but not in relation to third persons. But where the action is brought against the landlord in fact, the record, in the ejectment suit, is admissible to show the possession of the plaintiff connected with his title, although it is not conclusive upon the defendant in the same manner as if he had been a party on the record.

Amendments to the pleadings are matters in the discretion of the Court below. Error will not lie to this Court, on the allowance or refusal of such amendments.

Variances between the writ and declaration cannot be taken advantage of in the Court below, after plea pleaded.

Quære, Whether by the modern practice such variances can be taken advantage of at all?

ERROR to the Circuit Court of Maryland.

This was an action of trespass for mesne profits, brought by the plaintiffs in error, Chirac and others, against the defendant in error, Reinicker, in the Court below. The plaintiffs had recovered judgment, and possession of the premises, in an ejectment, in which one C. J. F. Chirac pray-