delivered the opinion of the court,
The first two errors are not assigned according to rule, and may therefore be disregarded. The remaining assignments are to the charge, and really bring up for review all that is material in the cause.
It was settled in this state in Bailey v. Fairplay, 6 Binn. 450, that in an action for mesne profits the judgment in ejectment is not conclusive as to the length of time that the defendant was in possession. The reason assigned by Chief Justice Tilghman is clear and unanswerable. In the action of ejectment “ as to the possession, it is enough if the plaintiff proves the defendant to have had it at the time the suit was commenced. So that no . inference can be drawn from the recovery in the ejectment as to the length of time *36for which the defendant has been in possession.” To the same effect are Mitchell v. Freedley, 10 Barr 198, and Sopp v. Winpenny, 18 P. F. Smith 80. Says the present chief justice, in the case last cited-“neither on principle nor authority will the defendant be prevented from showing that he had left the possession or was not in it after service.” There is nothing in any of these cases which countenances the idea that if the defendant Avas not actually in possession at the service of the writ or at any time aftenvards, he cannot prove that fact in order to relieve himself from liability for mesne profits. It is true the judgment in ejectment is conclusive that on the day of the service of the Avrit he was in possession. If any question should arise in Avhich that exact point Avas material, he would not be heard to contradict it. He could not be alloAved to do so in order to controvert the effect of the judgment as to the title at that time. It is also true that wherever a state of things is shoAvn to exist it ayíII he presumed to continue. But that is a mere presumption Avhich can be rebutted. If a man is concluded in laAV by a judgment that a certain fact existed on a particular day, he is not concluded from shoAving that it did not exist on the day after, even though such evidence might also tend to shoAV that it did not exist the day before. If this Avere not so, a defendant not in possession in point of fact on the day of the service of the Avrit of ejectment, would be concluded for the whole time between the service and the execution of the writ of habere facias possessionem. It is very evident that it Avould be impossible for him to prove that he had openly abandoned a possession Avhich he never had. It is enough then for him to shoAV that from the day of the commencement of the ejectment, down to the execution of the habere, he Avas not in possession. This reasoning, of cours'e, leaves untouched the case of one in actual possession when the writ was served, but who has afterAvards clandestinely removed.
The question of fact as to the possession of the defendant in this case Avas fairly submitted to the jury. Whether the verdict Avas right or wrong upon the evidence is a matter with Avhich ave have no right to intermeddle. It surely is not susceptible of a doubt that a hired laborer, a menial servant or a guest is not in possession. Whether Mary Henry, the defendant, fell Avithin the category of a servant or guest, or Avas in the house under a claim to the possession was therefore properly submitted to the jury.
Judgment affirmed.