Bates ex dem. Shattuck v. Tucker , 1 N. Chip. 35 ( 1790 )

But the Court held that the lease, though a fiction, must, by possibility bo a subsisting lease, at the time of bringing the action ; atthe time of the supposed ouster, & ® an(^ supposed time of making the lease ; the .whole is under the control of the lessor, who is the real plaintiff. He is conusant of his own title — to that, he must, át his peril, conform his declaration. He must set forth a lease, which mighty by possibility, be a good subsisting lease', at the time of the supposed date, or making of the lease; at the time of the ouster', and at the time of bringing the action. Here there is a merger — the lease is united to and merged in the fee. There could not be a subsisting lease, either at the time of the supposed ouster, or at the time of bringing the action. If the principle contended for by the plaintiff’s counsel should prevail, by carrying back the fiction, in point of time, recoveries might frequently be had, on titles long since extinguished or transferred. In this action the plaintiff is, and must be considered, as merely nominal, and all the right and benefit, as belonging to the lessor. If the lessor had no title to enable him to make the lessee, or, if he have departed with his title, though to the lessee himself, the action cannot be supported.

The lessor is the real plaintiff. He must set forth a lease which might be good, etc. Plaintiff x s nominal; all tbe right and benefit belongs to the lessor.

The Jury found verdict for the defendant.