Page:United States Reports, Volume 24.djvu/292

284 cresy. The very refusal to answer, implies the affirmation of the witnesses being employed by the defendant as counsel.

2. The defendant was liable, in this action, if he had notice of the ejectment, and was, as landlord, interested in the result of it. He might, even at common law, have been made defendant; but the statute of 11 Geo. II., in force in Maryland, explicitly allows it to him. He shall not screen himself from responsibility, because he had artifice enough to waive appearing, and to let an uninterested person figure as defendant in his stead. The lessor of the plaintiff may sue for mesne profits, and the actual tenant shall be liable, although the judgment in ejectment is obtained against the casual ejector only; and in reference as well to the defendant as to the plaintiff in such a suit, the Court disregards the fiction of the ejectment cause. He is answerable for the mesne profits who has received them, and has had an opportunity of defending his pretensions in the preliminary ejectment. The ejectment suit is founded on a fiction. Fictions are under the control of the Courts who use them. They will be moulded and applied to the views of justice, and according to reason—for they take their rise from the equity of the law: In fictione juris subsistit equitas. The au-