
    Alexander v. Herbert.
    [October Term, 1800.]
    Ejectment — Judgment — When Trespass May Be Brought. — After judgment for the plaintiff in ejectment, trespass does not lie against one, who was no party to the suit, without proving an actual trespass.
    Alexander brought trespass quare clausum fregit against Herbert, in the District Court. The defendant pleaded not guilty; and the act of limitations. Issue.
    Upon the trial of the cause, the plaintiff filed a bill of exceptions stating, that the defendant offered in evidence a case agreed or special verdict, in a suit between Charles Alexander plaintiff, and Vanpett &c. tenants of Carlyle defendants, relative to a tract of land, (setting it forth,) together with the judgment of the General Court, and Court of Appeals thereupon. Also a copy of a consent rule in the General Court, that the suit of Goodtitle v. Bryan and others, should await the decision of the other. Likewise a copy of'the proceedings in the suit of Goodtitle v. Bryan and ^others; and of the agreement of Edmund Randolph. That in case judgment should be rendered for the plaintiff, it should be rendered against Herbert and Ramsay for their respective tenants. That the plaintiff also proved, by parol testimony, that Randolph was employed by Little for himself and Herbert, to defend the titles as well of such of the said defendants in the said ejectments as were tenants to Carlisle Fairfax Whiting, an infant, whose guardian Little was, as of such of them as were tenants to John Herbert an infant, whose father and guardian the defendant William Herbert was. That the defendant objected, to all which evidence, and the court were of opinion, that it ought not to be admitted.
    There was a verdict and judgment for the defendant, and from that judgment Alexander appealed to this Court.
    Call for the appellant.
    If there be judgment against the casual ejector, trespass lies against the owner, although not named in the record of the judgment against the casual ejector. 2 Wils. 115: and this is substantially the same thing, as the record shews, that Herbert was really the true defendant ; and perhaps this evidence was only intended as an inducement to the proof of the trespass, as the bill of the exceptions does not state the whole evidence.
    Randolph contra.
    There is nothing to shew, that any trespass was committed; and if it was intended as inducement only, the other side should have shewn it. Herbert was no party to the suit. For .the agreement of the attorney was not applicable to the case; and therefore the whole evidence was irrelevant, and properly rejected.
    Cur. adv. vult.
    
      
      Tbe principal case is cited in Hutchinson v. Kellam, 3 Munf. 211.
    
    
      
      Vid. Ante 498.
    
    
      
      Ante 499.
    
   PENDEETON, President.

There is some difference amongst the Judges in their reason, but *they all unanimously agree that the judgment should be affirmed.  