The opinion of the Court was delivered by
Tilghman C. J.The question in this case, in the Court below was, whether the plaintiff had recovered damages in a former action, for a nuisance continued from 10th August, 1785, to 4th August, 1786. In order to prove that he had, the defendant gave in evidence the record of a recovery in a former action, in which a continuando was laid, including the time in dispute. On the other hand, the plaintiff offered, and the Court admitted, parol evidence, to shew, that on the trial of the former action, the plaintiff gave up part of the time *206laid in the continuando, viz. from 10th August, 1785, to 4th August, 1786, and received damages only for a time prior to -August, 1785. The. error assigned is, in the admission of the parol evidence.
jn trespass with a continuando, the plaintiff may wave the continuando, and prove a trespass at any time before the suit brought, or he may give evidence which goes to only part of the time laid in the continuando. The law is so laid down in Bull. N. P. 86. In trespass for mesne profits, if the defendant pleads in bar, a former recovery in ejectment, the Court will take notice, that the proceedings in ejectment are fictitious, and that it is not usual to recover more than small damages, for the ouster, without regard to mesne profits. Bull. N. P. 88. Thus it appears, that in order to do justice, the Court will inquire into facts not contradictory to the record. If the plaintiff did not in truth recover in the former action, for the time between 10th August, 1785, and 4th August, 1786, he will suffer wrong, unless he recovers in this action; And if he might, on the former trial, confine himself to part of the time laid in the continuando, I see not why he may not now be permitted to shew, that he did so confine himself, because this evidence does not contradict the record. Inasmuch then, as the justice of this case could not be'attained, but by admission of the parol evidence, I am of opinion, that it was properly admitted, and that the judgment should be affirmed.
Judgment affirmed.