Lead Opinion

The amendment moved for cannot be allowed, for that would be to make a new declaration.

The other motion was then urged by counsel for defendant, and MACAY, J., asked if there were any precedent to justify an admission to defend in that manner, when counsel for defendant cited the case stated in Bull., 97, and 2 Bac. Ab., 162; Barn. Supp., 24, 25; 2 Barn., 148. Where in case of several tenants, the rule may be drawn generally, that I. H., who claims title to the premises in question in his possession, shall be admitted defendant for such messages; and then plaintiff must prove what lands are in his possession — or specially, that I. H., who claims title to such lands, expressing them particularly, should be admitted defendant, and then the plaintiff need not make such proof. And he insisted that in the present case there was as much reason for admitting the defendant in the manner first stated as in the case where there are several tenants, since the tenant in the present case could not defend otherwise, without making an admission of the fact he principally intended to controvert.

Addendum

There is no precedent for such a motion as this, and therefore I cannot consent to it. The defendant must enter his defense as he thinks proper; but I think the proposal made by plaintiff's counsel a fair one, and fit to be acceded to, namely, that when the lands shall be run out by the surveyor, if the survey should include the lands claimed by defendant, that then he shall be at liberty to enter himself defendant for as much of the lands claimed by him as should be included in the survey, particularizing them — and I would recommend the adoption of it.

This appeared to defendant's counsel to be still an admission that these lands were a part of the premises described in the plaintiff's declaration, as he must still enter himself defendant for a part of the said premises in the declaration mentioned, to wit, that part to be so described; whereas his objection was not that the lands described in the declaration were not plaintiff's, for he admitted them to be so, but that *Page 97 the boundaries in the declaration did not comprise the lands which defendant claimed. But the opinion of the Court being against him, he was obliged to accept of the proposal recommended to him.

See Troxler v. Gibson, post, 465, and Cowper v. Edwards, ante, 19.