It is clear that an ejectment is almost entirely a fictitious proceeding, introduced from views of general convenience, which courts have assumed the power of moulding, so as to answer the purposes of justice, and in order to prevent a fiction from working injustice to any one.

If the lessor of the plaintiff removes out of the jurisdiction of the court, after the commencement of the action, we *582have compelled him to give security for costs. Such a case, however, is not within the terms of any act of assembly, but is founded upon this discretionary power, claimed and exercised by the court in this species of proceeding, to effectuate the objects of justice. It appears to me, that in order to attain the same ends, we have, and may exercise the same control over the defendant. We will not permit him to defend the suit, without entering into such terms as it has thought fit to establish in general cases; and when other circumstances arise, requiring a further exercise of our controling powers, I am at a loss to conceive upon what grounds we are to be restricted in so doing.

When the defendant entered into the rule he was a resident; we admitted him to make himself a party to the ■ cause, because he undertook to pay costs, and we had the means of compelling a compliance with this undertaking. He has since removed beyond our jurisdiction and control, and the court not being able in any other manner than in the one suggested on the part of the plaintiff, to compel the defendant’s compliance with his engagement, have a power in the fair exercise of their discretion to adopt that.

If any one applies to be made defendant in ejectment, against whom the court cannot enforce the payment of costs, it is clear to me, that he ought not to be admitted without giving security. If the same incapacity accrues afterwards, in consequence of his own voluntary act, it strikes me that the same course should be pursued. The object in the first instance is, to ensure the plaintiff from being exposed to unnecessary expense, and being unfairly dealt with; the same reasons applying with equal force in the latter case, seem to call for the same interposition of the court.

Smith, J. concurred.

Kirkpatrick, J. and Boudinot, J. being against it, Leake took nothing by his motion.