This is an action of trespass for mesne profits. The defendant occupied certain premises of the plaintiff from September 2,1913, to June 23,1934, during* which time it does not appear that he paid any rent. On May 23,-1914, the plaintiff commenced an action of trespass 'and ejectment tó recover possession of his premises and was awarded judgment for possession by the District Court of the Tenth Judicial District'and possession was delivered to him on June 23, 1914.

On the 18th of July, 1914, the plaintiff brought his action of trespass for mesne profits against the defendant, in said District Court, alleging the wrongful occupation of the premises by the defendant.

*59 (1) *58 In his bill of particulars the plaintiff claimed damages from September 17, 1913, to June 23, 1914, nine months and six days, at $12 per month, amounting to $111. The District Court gave a decision for the plaintiff for $64.30 damages and $3.15 costs. The defendant claimed a juiy trial and in the Superior Court a verdict was directed for the plaintiff in the sum of $92, to which ruling of court the defendant took an exception. Exception was also taken by the defendant to the refusal of the trial court to charge the jury as requested. Both of these exceptions raise the same question. The plaintiff claims that he is entitled to recover damages for a period beginning September 17, 1913, and ending June 23, 1914. In other words he claims that on the 17th of September, 1913, the stipulated rent being fifteen days in arrear, the plaintiff had a right of reentry, the defendant’s eviction in law began, and the right to mesne profits accrued. On the other hand the defendant claims that the relations between him and the plaintiff were, in the first instance, contractual in character and that they so continued down to the commencement of' the ejectment' proceedings on May 23, 1914, and that only upon and after the institution of such proceedings did the defendant’s occupation become tortious and therefore he would only be liable in *59 damages for Ms occupation from the date of the ejectment suit, May 23, 1914, to the date when the plaintiff recovered possession-on June 23, 1914.

“ Mesne profits is a sum recovered for the value or benefit which a person in wrongful possession has derived from his wrongful occupation of land between the time when he acquired wrongful possession and the time when possession was taken from him.” 20 Am. Eng. Encyc. of Law (2d Ed.) 609. This proposition does not seem to be disputed. The controversy arises as to the time Avhen the Avrongful or tortious occupation commenced. The action for mesne profits differs from an action for use and' occupation. The latter is founded upon a promise express or implied, while the former springs from a trespass and a tortious holding.

On May 23, 1914, the plaintiff brought his suit in ejectment against the defendant to recover possession of the tenement to which the present action relates. The declaration in the ejectment suit alleged that the defendant on said 23-rd day of May, 1914, Avrongfully detained from the plaintiff, Sc., possession of the tenement. Upon this ejectment suit the plaintiff obtained a judgment and later the possession of the property.

We think that the tortious holding of the defendant commenced on May 23, 1914, and that when the judgment in the ejectment suit became final that question became res adjuclicata. The plaintiff is entitled to recover the sum of $12 as damages for the wrongful occupation of the premises in question, by the defendant, from May 23, to June 23, 1914, and that as a matter of law he is not entitled to recover anything more.

The defendant’s exceptions are sustained. The case is remitted to the Superior Court with instruction to grant the defendant a neAV trial unless the plaintiff shall remit all of his said judgment in excess of the sum of $12.