
    Kennedy and Another v. Christian and Another.—In Error.
   THIS was an action for mesne profits, brought by Asa Christian and another, against Robert Kennedy and William Nichol. Plea, not guilty. Judgment in favor of the plaintiffs for 250 dollars.

Upon the trial the plaintiff introduced the record of a judgment by default against the casual ejector, in an action of ejectment for the premises for which the mesne profits were claimed, and a writ of habere facias possessionem, by which the plaintiffs were put in possession.

O. H. Smith and S. Yandes, for the plaintiffs.

J. Morrison and S. A. Major, for the defendants.

It further appeared in evidence that the tract of land so recovered in the action of ejectment, had formerly belonged to one Catharine Kennedy, who died in 1837. At her death it was taken possession of by the defendant, Robert Kennedy, and two of his brothers, as the heirs at law of the said Catharine. These parties divided the tract, about sixty acres being allotted to Robert Kennedy, and the remainder to his brothers, who sold their portion to Nichol, the other defendant. The part of the tract thus sold to Nichol was wild land, and there was no evidence that he ever made any use of it, except an admission that he had made five hundred rails from timber worth 50 cents for each one hundred rails.

The said Catharine Kennedy had made a will by which she devised the whole tract to the plaintiffs. This will had been concealed or destroyed by Robert Kennedy and his said brothers, but was established by proceedings in chancery about the year 1848. After the establishment of the will the action of ejectment was brought.

This evidence does not sustain a joint judgment against Robert Kennedy and Nichol. There is no evidence of a joint possession, but on the Contrary it clearly appears that they occupied or clamed separate and distinct portions of the tract. Nichol may be liable for the mesne profits of the land he had in possession, but not for those of the land held by Kennedy.

The judgment is reversed with costs.  