Page:United States Reports, Volume 24.djvu/306

298 the former suit is no bar to the latter against the defendant in ejectment, viz. that the mesne profits were not a matter in controversy in the ejectment. If, then, it is competent to maintain the action for mesne profits against any trespasser, although not a defendant in ejectment, it is competent to prove that the defendant is in that predicament. The evidence offered, in this case, was strong to prove the fact, that the defendant was a party to the trespass, supposing the plaintiffs to have established their title and possession. If he was landlord of the premises, and the other parties were in possession under him; if he was in the perception of the rents and profits, if he resisted the plaintiff’s title and possession, and co-operated in the acts of the tenants for this purpose, the evidence was proper for the jury as proof of his being a cotrespasser.

This doctrine is supported by the case of Hunter v. Britts, (3 Campb. N. P. Rep. 455.) which was cited at the bar. There, the judgment was against the casual ejector in the ejectment suit, and the action for the mesne profits was brought against Britts as landlord; and he was proved to be in the receipt of the rents and profits from the time of the demise till the writ of possession was executed. The ejectment was served upon the tenant; there was no evidence that Britts had any notice of this till after judgment; but, subsequently, he promised to pay the rent, and the costs, to the plaintiff. It was objected, that the judgment in ejectment was not, under these circumstances, evidence of