that which the writ and first declaration defined. There is no declaration here in the suit which was originally brought; or, at least, that which was a declaration has not been acted on; but the issue is taken, and the jury sworn, between new parties, and out of the suit which the record professes to carry on. The Court may, therefore, take notice of the change of parties, and of claim, and of suit, in this case; since they cannot fail to see between what parties they are adjudicating; and it is not necessary that the inconsistency be brought to their knowledge by a plea in abatement exclusively. It does not appear that Maria Bonfils was unmarried at the time of bringing the suit.
Feb. 20th.Mr. Justice Story delivered the opinion of the Court.
This is an action of trespass for mesne profits, brought by the plaintiffs in error against the defendant in error, in the Circuit Court for the District of Maryland. The cause comes before this Court upon exceptions taken by the plaintiffs on the trial of the cause in the Court below.
First exception.The plaintiffs had recovered judgment, and possession of the premises, in an ejectment, in which J. C. F. Chirac prayed to be admitted as landlord to defend the premises, and was admitted accordingly under the common consent rule. The record of the proceedings in that action were offered by the plaintiffs as evidence in the present suit; and they then offered to prove, by the testimony of R. G. Harper, and W. Dorsey,
