HALIFAX,

OCTOBER TERM, 1794.

#### Wilson Carter v. John Branch.

A declaration in ejectment served on a tenant in possession, cannot be amended, so as to comprise more lands than those already described. — The Defendant in an ejectment will not be allowed to defend only as to so much as the Plaintiff can prove him in possession of.

Ejectment, The Plaintiff by his attorney, moved to amend the declaration, so as to comprehend more lands than were described in the declaration served on the tenant in possession. The tenant in possession moved at the same time, to be admitted to defend only a? to so much of the premises as the Plaintiff could prove him to be in possession of, alledging that the locality of a line *156was the jxiatter of controversy; which if it ran where he, the Defendant, contended it did, he was not in possession of any part of the premises 5 if where the Plaintiff contended, he was then in possession of a small part only : but if lie entered into the common rule generally, that would be claiming upon the record the whole lands de~ scribed in the declaration, to any paid of which he had no claim : and if he entered himself Defendant for such of the premises as lay between the line claimed by the Plaintiff, and that which he contended to be the true line, this would be an admission that the lands so'defended for, were a part of those described in the declaration, which he by no means meant to admit. — Against the Plaintiff’s motion, the Counsel for the Defendant argued, that no original process could be amended, there being nothing to amend by; and that a declaration in ejectment ball always been considered as an original process, and therefore not amendable; and he cited 2 Sira. 121. Garth. 178. 2 Barnes 13, 17, 154. Garth. 401. 5 Mo. 332, and though a case liad occured, wdierc the Court had permitted the time laid in the demise to be extended, as reported in 4 Burr. 2448, 2449, yet that was matter of form only, and allowed to avoid the total bar of the Plaintiff’s title by the statute of fine and non claim, which would have attached upon it had the amendment not been made, and the Plaintiff non-suited and put to commence a new action — but no case had ever happened,' where an amendment in the description of the thing demanded, had ever been allowed in a declaration in ejectment, but the same had been expressly denied in the case of Thompson v. Leach, cited in 5 Mo. 334.

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

The other motion was then urged by the Counsel for the Defendant, and Judge Macaw asked if there were any precedent, to justify an admission to defend in that manner, when the Counsel for the Defendant cited the case stated in Bull. 97. and 2 Bac. M. 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 messuages; and then Plaintiff must prove what lands are in his possession— or specially, that I. H. who claims title to áuch lands, expressing them particularly, should be admitted Defen*157dant, 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.

Judge Macay — There is no precedent for such a motion as this, and therefore I cannot consent to it. The Defendant must enter his defence as he thinks proper; but I think the proposal made by the. Plaintiff’s Counsel a fair one, and fit to be acceeded to, namely, that when the lands shall be run out by the surveyor, if the survey should include the lands claimed by the 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 the 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 w7as not (hat. the lands described in the declaration were not the Plaintiff’s, for lie admitted them to be so, but that the boundaries in the declaration did not comprise the lands which the Defendant claimed. — But the .opinion of the Court being against him, he was obliged to accept of the proposal recommended to him.

Note. — As to the amendment vide Troxier v. Gibson, post 465—But see note to Cowper v. Edwards, ante 19, and Adams on ejectment 205.—Upon the other points see Jldams on ejectment 234, 235.