Page:United States Reports, Volume 24.djvu/304

296 fend the same; and received the rents and profits thereof, during the progress of the ejectment; which evidence the Court refused to admit: and this constitutes the second exception of the plaintiffs. The plaintiffs then offered to prove the same facts, (not saying by parol evidence,) with the additional fact, that counsel did defend the same action for the benefit of the defendant. This evidence was also rejected by the Court, and constitutes the third exception of the plaintiffs.

The question of law, involved in each of these exceptions, is substantially the same. It is, whether a person, who was not a party to the ejectment, and did not take upon himself, upon the record, the defence thereof, but another did as landlord, may yet be liable in an action for the mesne profits, upon its being proved that he was, in fact, the landlord, received the rents and profits, and resisted the recovery.

It is undoubtedly true, that in general, a recovery in ejectment, like other judgments, binds only parties and privies. It is conclusive evidence in an action for mesne profits against the tenant in possession, when he has been duly served with a notice in ejectment, whether he appears, and takes upon himself the defence, or suffers judgment to go by default against the casual ejector. The reason is, that in the first case, he is the real party on the record; in the last, he is considered as substantially the defendant, and the judgment by default, as a confession of the title set up in the ejectment. Such was the de-