We are of opinion that the Circuit Court have not erred. The evidence offered, if it had been received, ought not to have had any effect. The circumstance of offering to appear and show on the trial of the ejectment that Hardeman had no title ought not to lessen the damages, unless in this suit he would proceed further and show by proof the same thing which he had proposed to do in the other suit, to wit: that this title was better than Hardeman’s, which if done would bar a recovery ; but this he did not offer to do.

These observations will also apply to the judgment on the demurrer which was put in to the first plea.

The judgment therefore must be affirmed.