Page:United States Reports, Volume 24.djvu/295

Rh as a circumstance, and as evidence, and not as an estoppel. We admit, that a party, to be liable for mesne profits, must be a trespasser; and we meant to prove Reinicker, by privity, to be a trespasser. The case in 7 Term Rep. 108. shows, that if the husband there had had notice of the ejectment, he would have been answerable for the mesne profits.

3. The action for mesne profits being the mere sequel of the recovery in the ejectment cause, the record of that recovery is the proper evidence to show the lessors of the plaintiff entitled to the mesne profits so as they are claimed, within the terms of the demise in the ejectment. If profits antecedent to the term are asked, then the plaintiffs cannot rely on the ejectment recovery as conclusive evidence, but must prove their title to the land anew, and again open the merits of the ejectment cause. The claim for mesne profits here keeps within the limits of the ejectment demise, and we had no occasion, therefore, to prove our title otherwise than by the record of recovery in the ejectment. Although the husband, who did not appear as a lessor of the plaintiff, is joined in this action with his wife, who was a lessor, still the record of the ejectment is evidence for us, since the husband is no new party in interest. If necessary, this might be enforced by analogy from the writ of re-disseisin in the