
    *Roe, for the use of Jonas, v. Bank of the United States.
    Writ of error can be sustained in the name of tbe casual ejector.
    This was a motion to quash a writ of error, issued in the name of the casual ejector, after judgment against him by default, in a case where the tenant in possession did not enter into the consent rule. The writ of error was prosecuted by the person claiming the interest as landlord. The motion was made to quash the writ of error, and adjourned for decision from the county of Hamilton.
    Storer, against the motion:
    The question submitted for decision is, can error be sustained on a judgment in ejectment, brought in the name of the casual ejector, where the tenant in possession has not entered into the consent rule, and the judgment is rendered by default against the casual ejector.
    
      In support of the affirmative of this proposition, I will examine the reasons given in the books, if they ean be termed reasons, why error should be supported. The first ease I can find reported is that of Roe v. Doe, ex dem. Humphreys, in Barnes, 181, which is this-: “Adney, an attorney, brought a writ of error in the name of the casual ejector, which he was ordered to non pros, at his own expense and pay costs, but was excused from further censure, it appearing that he had been informed by some of the eursitory clerks that such a writ of error might be brought.” No reason is here given, and no authority cited for the decision. Morgan, in his Vade Mecum, 291, states the principle generally, and quotes Barnes alone to support it. Mr. Rose, in his notes to Comyn’s Digest, gives the same rule, and refers to Barnes, and George, ex dem. Bradley, v. Wesdom, 2 Burrows, 756. Now, the only principle decided in the case in Burrows is, “that if cause for setting aside execution in ejectment is not shown in time, the court will not afterward set it aside.” At the end of the case, and as no part of the opinion of the court, the reporter adds: “ Note.—It was agreed on all hands that a writ of error could not be taken out in the name of the casual ejector.”
    There is a note to the second volume of Bacon’s Abridgment, 454, to the same effect, and the same dicta are quoted. In *Adams on Ejectment, 312, it is said : “ A writ of error will not lie in ejectment in the name of the casual ejector; and consequently it will not lie till after verdict; for before appearance the casual ejector is the only defendant in the suit; and after the appearance the new defendant is bound by the terms of the consent rule to plead the general issue.” To support the first branch of this principle, the case in Barnes, just referred to, is quoted.
    Here, then, we have the whole law on the subject. It appears to me, however, that there is no soundness in the rule, as applicable at least to our practice.
    1. Because the action of ejectment is but a string of fictions, and the remedy is aptly called in Adams on Ejectment, 158, “ p child and creature of the court.” Hence, as these fictions are intended to promote the ends of justice, it is in the power of the court so to construe them as to effect that object. There is no greater absurdity, under the modern practice, to bring error in the name of the casual ejector, than there is to sue out an ejectment in the name of John Doe. In the one case, the person on whose demise the action is founded, is liable for costs, and is considered the real party interested; and certainly, in the other, the person for whose benefit the writ of error is prosecuted, may be considered as standing in a similar situation.
    2. Because, if the rule should prevail, this anomaly would be presented, that there might be a final judgment that a court of error could not re-examine or control, no matter how improperly or illegally it might have been obtained. If the casual ejector can not bring error, the tenant in possession certainly can not. But rights of third persons are affected by such judgment; a citizen may be deprived of his freehold, and be driven to his cross ejectment to recover his possession.
    But there is a necessity that the remedy by error, in such cases, should exist in favor of the casual ejector or the tenant in possession. A tenant may collude with one holding an adverse title, agree to accept a declaration in ejectment from him, refuse to notify his landlord of the suit, surrender up his term, when judgment is rendered by default,- and thereby prevent, if possible, the payment of rent, or attorn over to a ^stranger, and defeat for a time the rights of his landlord. All this may be done, and it is against such abuses of the legal process of our courts that we wish to be protected. The tenant, as in the present instance, was served with process a short time previous to the term at which judgment was rendered by default, and was directed to appear on a given day within that term. A final determination was then made of an important suit in less than--after process was first served.
    This writ is prosecuted for the benefit of the landlord, to be restored to the possession of premises which have been taken from him against his consent, and without his knowledge. And what deeper interest, I would ask, can a party have than is attached to him? His property has been the subject matter of legal adjudication, and yet he has not been heard, nor been notified that he would be heard. He has been literally casually ejected from his freehold. A legal fiction has ousted him from his estate, and he is now denied, if the defendants are correct, the aid of the same legal fiction to reinstate him in the possession of his property.
    It is settled law, that no person can bring a writ of error, “ unless he is injured by the judgment, and is to receive advantage by the reversal of it.’1" 2 Bacon’s Abridgment, 454. So, if the plaintiff recovers in an “ tjectione firmcej’ by confession, nihil dicit, non sum in
      
      formatus, etc., a writ of error lies before a writ of inquiry of damages executed; for if th q defendant were to be hindered from bringing a writ of error, it might be in the plaintiffs power, by refusing to execute a writ of inquiry, to delay the defendant forever. 2 Bacon’s Abridgment, 454. “And the writ must go against him who was party to the judgment, although he had nothing in the land, and not against the tenant.” 2 Bacon’s Abridgment, 457. Nowin the case quoted, the casual ejector, let him be a nominal person or not, is the only party to the suit, and it appears strange that this should be held to be the correct doctrine, and not be applied to the present controversy.
    A thorough examination of the indexes to all the American Reports has resulted in one solitary decision on the subject, which is directly in favor of the present action. In Walker v. Badger, 3 Bibb, 433, the court of appeals in Kentucky ^decide “that the writ of error must be brought in the name of the casual ejector, where the judgment is by default, and the tenant in possession can not sue the writ in his own name.”
    This case I conceive to be decisive of the point, as there is both reason and common sense to be found in.it. It will be recollected that Barnes, to say the least of him, is a very loose reporter, and Heath, Justice, in Borrowdale v. Hitchener, 3 Bos. & Pul. 246, remarks, “ that many of the cases reported in Barnes are not law.”
    Yet the lecture that was read to the unfortunate attorney, Mr. Adney, is the only real point decided by the court, in the leading case to which the elementary writers and digest makers have referred. It will also be remembered that there is no legal adjudication of the point in any other book than Barnes. The note in Burrows is that of the reporter; and the compliment that was paid by the great English judge to Sir John Comyn, “ that all the cases he quoted were good law,” does not apply to his annotator.
    Fox, in support of the motion :
    The question to be decided in the present case is, whether a writ of error can be sustained in the name of the casual ejector, brought by a person who was not in possession of the property at the time the suit in ejectment was commenced, but who claims to be landlord of the tenant who was in possession of the property, and upon whom the declaration in ejectment was served.
    The tenant does not wish the present suit prosecuted. He has made oath that the writ of error was commenced without his consent, and that it is now prosecuted against his wish.
    We contend, in the first place, that there is nothing in the record which goes to show that Joseph Jonas, for whose benefit this suit is said to be brought, has any interest whatever in the premises described in the declaration. Surely, it will not be contended that any man can bring a writ of error, unless he can be affected by the operation of the judgment. *None can complain but those who are injured by the alleged error.
    Inasmuch, then, as it does not appear, either by the record, affidavit, or in any other way or manner, that Joseph Jonas is or can be affected by the unjust judgment complained of, the present writ of error can not be sustained. 2 Bac. Abr. 456, title Error; 1 Bibb, 294.
    But even if it did appear that Jonas had an interest in the property, as, for instance, if it appeared that he was landlord to the tenant in possession, we contend that no writ of error can be sustained by the landlord, as the judgment is no bar to the new action by him. He can, by instituting his action of ejectment, recover the possession of the premises immediately, if he has the best title; and if he has not, he ought not to be permitted to sustain a writ of error for defect in matter of form, which his tenant was willing to waive.
    If he has been injured by the omission on the part of his tenant to inform him of the commencement of the suit, he has his remedy •against his tenant, and he can recover his rents of the party who has remained in possession of his property.
    But the authorities, what there are on the subject, are directly against the right to sustain a wit of error by the casual ejector. In 2 Bac. Abr. 454, title Error, in note a, it is laid down that, “ if the defendant do not at the trial confess lease, entry, and ouster, according to the rule, he can not have a writ of error, because, in ••such case, the judgment is against the casual ejector, and error can not be sued against the casual ejector, neither can it be sued in such case in the name of the defendant, for he has not made himself party to the récord.” In George v. Wisdom, 2 Burrows, 757, in the note, it is said, “It was agreed on all hands that a writ of error could not have leen taken out in the name of the casual ejector.”
    
    Again in 2 Bac. Abr. 411, title Ejectment, treating of judgment •against the casual ejector, it is said, “ on which judgment the defendant can not bring a writ of error, for he was no party thereto; and if he bring such a suit in the name of the casual ejector, the casual ejector being a friend to the ^plaintiff’s lessor, may either release the errors, or upon a motion for a non pros., the court will order it to be entered.”
    In Adams on Ejectment, 312, it is laid down that “a writ of error in ejectment can not be brought in the name of the casual ejector, and consequently it will not be until after a verdict; for before appearance, the casual ejector is the only defendant in the-suit, and after appoarance the now defendant is bound by the terms of the consent rule to plead the general issue. If also the defendant refuse at the trial to confess, etc., he will be precluded from bringing error, because the plaintiff will then be nonsuited as to him, and the judgment will be entered against the casual ejector.”
    All of the authorities, then, which treat upon this subject, are against the plaintiff in error, and the very principle upon which writs of error are founded is against him. This court have decided that in order to enable a party to sustain a writ of error, the error complained of must be prejudicial to the person complaining. 2 Ohio, 344.
    It is also settled, a party can not sustain a writ of error on a judgment of nonsuit, whore a judgment for costs has not been rendered against the plaintiff. 2 Johns. 8, 9; 2 Bac. Abr. 452.
    Here is no judgment for costs against Jonas. ' He is not entitled, therefore, to bring error.
    In an action against the bail, the principal can not bring a writ of error, although he may be affected by the decision; the reason is, the parties are perfectly distinct. 2 Bac. Abr. 461.
    But the plaintiff’s counsel say that the decision in 3 Bibb, 433, is directly in favor of the present suit. Now, I contend that nothing is decided in that case which can affect, in any manner, the present case. There the writ of error was prosecuted in the' name of the tenant in possession, who had neglected to appear and defend, and the writ was quashed. But the court say, “the writ oí error must be sued in the name of the casual ejector,” and what is remarkably singular, they say this distinction is founded upon the general rule, and is supported by the books which treat of this subject,' and refer to Bac. Abr., title Ejectment, let. 6, and title Error, let. a. Although it has been before shown, the rule. is there laid down *that no writ of error can be sustained in the name of the casual ejector.
    It is clear, then, that upon authority, the present suit can not be sustained. Not a case is to be found in the books, except in-Barnes, where the question has been made, and that case is directly opposed to the doctrine. With the decision in that cause, the profession appear to have been satisfied, and I can see no good reason why a different rule should now be adopted. It is impossible for a person who wishes to obtain possession of land, to ascertain who claims to be landlord of the premises, unless the tenant thinks-proper to inform him.
    He presumes himself to be owner, and all the law requires of him is to give notice to the person occupying the premises of his-intention to oust him. If the tenant should be disposed to collude with the holder of an adverse title, as Mr. Storer supposes, and agree to accept a declaration from such a person for the purpose of injuring his landlord, he can do it without submitting to. the tedious and formal process of an ejectment; he has nothing more to do than merely give up the possession to the claimant,, and thereby the landlord is put to his cross ejectment, and thus, he effectually accomplishes in a few minutes what Mr. Storer supposes he might do by suffering himself to be sued.
   By the Court:

We are unable to perceive any reason for the doctrine that a writ of error can not be sustained in the name of the casual ejector. He is not more a nominal person, nor less interested than the nominal plaintiff or lessee, in whose name the proceedings are conducted. The adverse claimant may be prejudiced in the progress, of a suit as much as the plaintiff’s lessor, and there seems to be-just the same reason for one to be at liberty to use’the name of the fictitious party as the other. The doctrine appears to have-originated, and, indeed, to continue, in mere dicta. We do not know that it has before been agitated in this state, and we feel at. liberty to establish the principle, as to us appears consonant with justice. The motion is overruled, and the cause remanded for further proceedings.  