72 STRIKE'S CASE.

upon the land or have been consumed by him or not; nor does the
occupying tenant's knowing any thing of his adversary's title make
any difference, as to the nature and extent of his liability for rents
and profits. At common law, no damages were recovered in any
real action; because, as it was said, until the right to the land was
determined, the party could not be said to suffer any wrong. But
it seems to have been considered as well established law, from a
very remote period, that the right to maintain an action of trespass
for the recovery of the mesne profits, followed as a clear and neces-
sary consequence of the party's having established his right to the
land itself. And it appears to be somewhat singular, that, during
the period when real actions were much in use, the legislature
should have deemed it necessary to interpose, for the purpose of
allowing, by positive provision, the demandant, in many of them,
to recover damages, or rents and profits; and yet, that those real
actions, so amended and improved, should have been superseded
by the action of ejectment, in which, as it now seems to be settled,
nothing is recovered but the land, and the party is left, as at com-
mon law, to recover the mesne profits in a separate action of tres-
pass. But the right to recover the mesne profits by way of damages
in the modern action of ejectment itself, is recognised by an
English statute, passed in the year 1664, and the practice of so
recovering them, seems to have prevailed for some time in England,
and also in this State.(d)

As early as the year 1667, in a case where lands were settled
for the payment of debts, the trustees were held accountable in
equity for the rents and profits to the creditors for whom they were
received; and in 1685, it was held, by the Court of Chancery,
that he who took the mesne profits by wrong, was considered as
trustee for, and accountable to him who had the right; and thence-
forward the Court of Chancery made all persons account for the
mesne profits they had received, to such persons as had the equita-
ble title. And it is now settled, that where there is a serious
difficulty in recovering at law, fraud, concealment, or the like, or
where the title is merely equitable, the party may recover the rents
and profits in equity, (e) But in chancery, as in the courts of
common law, there seems to have been always a strong disposition

(d) 2 Bac. Abr. tit. Ejectment, H.; 16 & 17 Car. 2, c. 8; Goodtitie v. Tombs,
S Wils. 120 • Lewis v. Beale, 1 H. & McH. 185; Joan & McCubbin v. Shields,
8 H. & MeH. T-, Gore's Lessee v. Worthington, S H. & McH. 06.—(e) Norton v.
Frecker, 1 Atk. 525,