been a trespasser. The ejectment suit complains of a trespass, and the person to be charged for the mesne profits must, therefore, have been actually a party to that suit by having appeared as defendant, or by having been required to appear by service of process in the suit, and then failing to appear. It is only by this judicial notice, and a waiver of the privilege of appearing, testified by the record of the suit in ejectment, that the defendant in the action for mesne profits can be treated as if he had been a defendant in the ejectment, and adjudged a trespasser, to bear the liability for mesne profits. By mere waiver in pais, or notice extraneous to the record, a party cannot be rendered liable for mesne profits, although, in fact, he may have been interested in the result of the ejectment suit. That interest, however, quoad the ejectment, and in reference to the suit fur mesne profits, does not prove him to be a trespasser, which he must be before he can be liable to the claim.[1] The Court must look to the record of the ejectment for light as to the responsible parties on the score of mesne profits; they cannot derive it from other quarters, or collateral proof. Hence, too, the record of the ejectment is not evidence of the right of the lessors of the plaintiff to the mesne profits, as against one who was not actually a party in the ejectment suit, nor effectively so by being called on through notice in the process of ejectment to appear as defendant. Here, how-
- ↑ Selwyn’s N. P. 121.
