delivered the opinion of the court.

The only question is, whether the recovery in the action of trespass is a bar to this action; and it is enough to say that this court has before decided that a recovery in trespass on lands is a bar to the recovery of mesne profits, that is, for the use and occupation of the sarhe land, at any time anterior to the verdict in trespass.

This was decided in the case of Lehre vs. Sumter. The evidence of the after promise to pay, was too imperfect to be relied upon.

The motion is therefore dismissed.