
    Benson and others against Matsdorf.
    Afte a recovery in ejectment. the plaintiffs brought their action for mesne profits; but before it was tried, the defendant brought an action of ejcctment against the former plaintiffs (who had been put into the possession of the premises) and recovered, and then pleaded the recovery in bar of the plaintiff’s action for the mesne profits, but it was held that the plaintiff after a recovery in ejectment, is entitled to this action for the mesne profits.though it should appear that the defendant had a better title.
    This was an action for mesne profits, tried at the last June circuit, in Dutchess county, when a verdict was taken for the plaintiff for 150 dollars damages, Subject to the opinion of the court on the following case.
    ' The defendant, and those under whom she claims, had been in possession of the premises in question for above thirty years past. In August term, 1805, the plaintiffs recovered judgment in an action of ejectment against the defendant, and took possession under that judgment, and immediately afterwards brought the present action for the mesne profits. As soon as the plaintiffs were in possession, the defendant brought his action of ejectment against them ; and the cause was noticed for trial at the last June circuit, in Dutchess county, at the same time with the present action, for the mesne profits. The action of ejectment being first brought on to trial, a verdict was found for the plaintiff, (the defendant in the present suit) When the present suit came on to be tried, the verdict in the other cause was offered in evidence, in bar of the action. By consent, the judge overruled the evidence ; and the question was r served, whether the verdict of recovery in the action of ejectment brought by the present defendant against the plaintiffs, was a good bar to an action for the mesne profits, founded on the former recovery by the present plaintiffs against the defendant in ejectment, for the same premises. It was agreed, that the question should be decided in the same manner, as if the verdict had been pleaded puis darrein continuance, instead of being offered in evidence. The demise in the first action of ejectment was laid on the 1st of May, 3785, and in the second action on the 1st of May, 1805, and the same title was litigated in both causes.
    
      Emott for the defendant.
    I recollect no adjudged case, in which tHis question has arisen or been decided. It se@fi1S reasonable and just to presume, that as the second verdict was in favour of the defendant, she had a better title; and if so, it ought tobe a sufficient answer or defence to the action, for mesne profits, arising out of the former action. These actions are the creatu'res of courts ■of justice, and ought to be moulded to subserve the purposes of justice's. If, according to the strict and technical rules, the verdict in favour' of the defendant could not be pleaded in bar of the plaintiff’s action for mesne projits ,■ still this court might lay hold of the present plaintiffs, and stop all further proceedings in the cause. If a court of equity would enjoin the plaintiffs not to proceed fur-' ther, why may not this court, having a control over actions of this nature, interpose,^and put an end to all further proceedings ?
    
      J. Tallmadge, contra.
    The action for mesne profits is' a direct consequence of the recovery in an action of ejectment. The defendant can ne ver deny the right of the plaintiff, and the only inquiry is, as to the time of possession, and the value of the pre mises, in order to ascertain the' amount of damages to be recovered. No subsequent right acquired by the defendant can take away the' right of the plaintiff to mesne profits, acquired by the first recovery in ejectment. The defendant can plead no-other plea but the general issue, or accord and satisfaction. Nothing canbe pleaded puis darrein continuance t which could not have been pleaded before issue joined, had it then existed. In the case of Dufiield v. Stille, reported in 2 Dallas, 156'. after a recovery in ejectment, the plaintiff conveyed the premises in fee-simple to the defendant, by bargain and sale with warranty; yet it was held that the plaintiff might maintain his action for the mesne: profits, notwithstanding the conveyance of the title to the defendant.
    
      
      
        Butler's JV*. P. 87. 2 Burrou>,665.
    
   Per Curiamr

(stopping Tallmadge.) It is well settled,that the right to mesne profits is a uecessary consequence-' of a recovery in ejectment 5 and the defendant could not. set up a title in bar, even if he clearly had a better title; It cannot be said, that the second trial ascertained which had the better right. A court of law has no power to put an end to the litigation of.parties in.ejectment^ in this way. ■ _

Judgment for the plaintiff  