Page:United States Reports, Volume 24.djvu/294

286 real action, except against the disseisor himself, and then only in the assize of novel disseisin. Hence the practice for the disseisor (similar in principle to the attempt of this defendant) to enfeoff persons to act as defendants, who were not responsible. To prevent this abuse, the statute was passed, making all pernors of the profits responsible in real actions for damages. But the action of ejectment, being a personal action in its origin, there was no need of a statutable provision to authorize an award of damages in it. It has taken the place of the real actions of common law. Reinicker, claimant of the fee, must be regarded as in possession; and his tenant’s possession was his.

It is true, that Chirac appeared as landlord in the ejectment cause. But our purpose is, to show that Reinicker appeared by another; and though that other also assumed his (Reinicker’s) title, that circumstance serves only to aggravate the fraud attempted upon the law, and to show the more conclusively, that Reinicker waived his privilege of defending in his own name, and by candidly announcing his interest on the record. We are not estopped, then, by C. J. F. Chirac’s usurpation of the title of landlord, as well as the part of a defendant. If this action were even against him, we should be compelled to prove him landlord, notwithstanding his pretension to the character by appearing as landlord. His appearing might be relied on to prove his being landlord, but only