
    [173] HULSE AND ANOTHER v. WHITE, SURVIVING EXECUTOR OF WAINWRIGHT.
    1. In an action of covenant on a warranty, on a sale of lands, the plaintiff allowed to prove the value of his improvements as part of the damages sustained.
    2. In such action the defendant is not allowed to prove in diminution of damages the profits received by plaintiff from the land.
    This was an action of covenant, brought to recover the value of certain lands conveyed with warrant by the testator to the plaintiff, from whom the same had been subsequently recovered by Jonas Dick and Elizabeth his wife, in an ejectment.
    In this case the plaintiff offered to prove the value of certain improvements which he had put upon the lands in question, in order to show the amount of damages which he had sustained by the breach of covenant. This evidence was objected to by Stockton, but the objection overruled, 
    
    
      Stockton, for defendant,
    asked one of the plaintiffs’ witnesses whether the plaintiffs had not planted the ground and received the profits while they were in possession. The question was objected to by Aa. Ogden, on the ground that they were answerable to the true owner for the mesne profits.
    
      
       See Bender v. Fromberger, 4 Dall. 445; Marston v. Hobbs, 2 Mass. 433; Gore v. Brasier, 3 Mass. 523; Staats v. Ten Eyck, 3 Cains 111; Pitcher v. Livingston, 4 John. 1; Morris v. Phelps, 5 Johns. 49; Horsford v. Wright, Kilby 3; Liber v. Parsons, 1 Bay. 19; Guerard v. Rivers, Ib. 265; Caswell v. Wendell, 4 Mass. 108; Cooper's Justin 607, 618, in which last book all the authorities are collected and examined.
    
   Per Cur.

The question is not proper. The defendant, cannot avail himself of the use made by plaintiffs of the property of another in order to lessen the damages. We must suppose that the real owner will have satisfaction for the profits received from his land.  