title against Britts; and Lord Ellenborough held, that it was not, without notice of the ejectment. But he thought that his subsequent promise amounted to an admission that the plaintiff was entitled to the possession of the premises, and that he himself was a trespasser. The language of the learned Judge seems, indeed, to import, that if the landlord had had notice of the ejectment, he would have been concluded by the recovery in the ejectment. It might be so, if the common notice had been formally given to him as tenant in possession, and he had neglected to take upon himself the defence of the suit. If, however, the notice was in pais, and conduced merely to prove his actual knowledge of the suit, without calling upon him to defend it, we are not prepared to admit, that, on general principles, it ought to have such an effect.[1] But the point actually decided was, that a party might be charged, in an action for mesne profits, who was not, in any sense, a party to the ejectment, by establishing the title against him, and showing his connexion as landlord with the tenant in possession, and his adoption of the acts of the latter.
Plaintiffs not estopped by the record in the ejectment suit from setting up up the fact that the defendant was the real landlord.But, it is said, that assuming the law to be so in general, yet, in the present case, the plaintiffs are estopped from setting up the fact that the defendant was the real landlord, because, in the ejectment, one J. C. F. Chirac prayed leave of the Court, “as landlord of the premises, to be made defendant” in the place of the casual ejector, which was, with the consent of the lessee of
- ↑ Adams on Ejectment, p. 336. 2d ed.
