Doe Ex Dem McLennan v. McLeod

PkaksoN, O. J. The interest, which used to attach to “ the fictions” in the action of ejectment, has passed away since the adoption of the Code of Civil Procedure. The fiction oí a “lease entry and ouster” was adopted merely for the sake of saving the trouble and expense of making a lease and entry. It follows, as a logical conclusion, _ no lease can be set out in the declaration which could not have been made at the time the action was commenced. Adderton v. Melchor, 7 Ired. 249. Tested by this principle, the exception of the defendant cannot be sustained. Farquhar Martin was living at the time the action was commenced, so he could at that time have made a lease, and his lessee could have entered. The objection to the amendment on the ground “ that Farquhar Martin is now dead, and it is inadmissible to make a dead man a party to a suit, was based upon a misapprehension of the principle. The amendment did not make Farquhar Martin a party to the action, but merely supposed that he had made a lease at the time the action_was commenced. He was then living and *368 could have made the lease, and the fiction is merely to save the trouble and expense of actually making the lease. The second objection is also untenable. The action did not abate by the death of the lessor, and there was no necessity for making bis heirs parties except to make them liable for the costs, for the lease supposed, was in no way affected by his death. In Skipper v. Lennon, the rule was misapprehended, and the Court professing to act on the principle settled by Adderton v. Melchor, manifestly fall into error, by supposing the time to refer to the application for the amendment, instead of the date of the commencement of the action. There is no error. This will be certified to the end that the case may be proceeded in with the amendment. Pee Cueiah. Judgment affirmed.