1. The tenant — the actual tenant — in possession, is the proper defendant in an action of ejectment. He is the adverse holder to the plaintiff, and he has a full right to treat him as the person keeping him out of his land. And our statute authorizes the writ of possession to issue, and to oust not only the defendant, but all persons put in- possession by or claiming under, or by virtue of any conveyance from, him. In this *97case, the defendant in (jectment was the tenant of the present plaintiff, and like a good tenant, and as was his duty, he informed his landlord of the suit, and the landlord took steps to defend in his tenant’s name. He employed counsel, who pleaded, and confessed judgment and then appealed. By not making himself a party he authorized the plaintiff to treat the‘tenant as the true owner or claimant, and by the authorities he made himself liable at common law for costs. The action of ejectment would be perfectly worthless if the landlord might, after judgment against the tenant, and before writ issues, resume his possession, and thus defeat the judgment.By a little management, the plaintiff could thus always be defeated. But the law is well settled-otherwise.
2. In Akin vs. Freeman, this court, a majority, held that the dormant judgment act was suspended from 1861 to 1868, and so long as the court is constituted as it now is this is no longer an open question: See Akin vs. Freeman, 49 Georgia, 51.
3. As a matter of course, if the plaintiff in the ejectment suit colluded with the tenant, and got him to withdraw the appeal -with intent to defraud the present plaintiff, the judgment would be -void, and be no protection to Bell against the present suit. The plaintiff’s witnesses very positively say there was this fraud and collusion, and we are free to say we have never seen such testimony as this before in a brief of testimony. The witnesses state in broad terms that Bell colluded with Wimberly, and that the appeal was withdrawn'in fraud of Rodgers’ rights. The brief further says that two other witnesses testified “substantially to the same things.” How such evidence was allowed to go to the jury we are unable to comprehend. It is all the conclusions of the witnesses. Bell colluded with Wimberly. How Bell acted in fraud of Rodgers’ right? How, it is not said, and it does not appear. So far as does appear, there was no evidence that Bell knew anything of Rodgers in the matter. He may have done so, and perhaps he did. But none of the witnesses say so. Fraud cannot be proven in this way. A witness must say more than *98that there was fraud. That is a conclusion of law from .facts, and the facts must be stated. The jury do not seem to have been willing to take the conclusions of the witnesses for facts, and found there was no proof of fraud, and we cannot say they did wrong.
Judgment affirmed.