without specifying any particular passages or pages, the learned justice declares, that before the acts of 11 George II, chapter 19, "it was certainly the practice to admit the landlord and the tenant in possession co-defendants."

It seems that Mr. Justice Wilmot likewise took notice that notwithstanding all the pains that the legislature had taken to cut off dilatories, yet it was the courts of Westminster hall to whom the public were obliged for finding out this easy and expeditious method of trying titles by ejectments.

And it appears from the observations of Lord Mansfield in the same case, that no case had been found prior to that of Goodright v. Hart, in Strange, where the court had refused to let in persons who stood behind the tenant in possession, to defend pro interesse suo, in the stead of the tenant in possession. The precedents before that case seem to be more liberal.

In 1652 it was said by the prothonotary (then called protonotary), "that the court would, upon terms, allow him who alleged title to defend it."

In the 7th of King William, Lord Bath, claiming the reversion by deed, after the death of the tenant for life, who received the rent, was admitted a defendant, because it might shake his title.

In the 10th of King William, it is laid down as a certain rule in the case in 12 Modern reports, 211: "if notice in ejectment be given to an under-tenant, and he doth not acquaint his landlord therewith, but suffers judgment to go against him, the court, upon motion, will not suffer execution to be taken out till the right be tried;" which Lord Mansfield considered decisive, that the landlord should not be betrayed, but might defend alone.

In the 1st of Queen Anne, Lord Holt says: "It is due of right to the landlord to be made defendant; for otherwise the tenant in possession might combine with the lessor of the plaintiff and oust the landlord of his rent, and to deny the lady that right would be upon the presumption of her marriage, which would be directly to determine the point in question." And Lord Mansfield adds: "The combination of the tenant in possession could not be prevented, unless the landlord might defend alone."

A little further on Lord Mansfield says: "Thus stood the reasoning and practice, when the motion was made in Goodright v. Hart et ux. in 2 Geo. II. It seems to have been very little considered. The only reason given why the tenant might betray his

landlord by refusing to appear (because the landlord was made a defendant una cum the tenants in possession '), equally, at least, proved the contrary. It was a breach of the rule in the tenant to prevent his defending. No wonder Sir John Strange adds a 'quære tamen; for, this is giving tenants much too great a power; and makes them absolute masters of the estate, and to choose their own landlords.' The court refusing to relieve them, he practiced with the tenants, to attorn. Then the plaintiff in ejectment moved; but was denied relief. So the court first suffered the plaintiff in ejectment, by corrupt practice with the tenants, to dispossess the landlord by a judgment, without any opportunity of trial; and then suffered the landlord, by corrupt practice with defendants, to defeat the judgment and possession given in consequence thereof. This case certainly occasioned the clause in the act of parliament relative to this subject. As the parliament has contradicted it, one may venture to say 'it was hasty.' Every reason of private justice and public convenience, and every authority was the other way." (Fairclaim v. Shamtitle, 3 Burr. R. 1290, 1301-1303.) From the observations of Lord Mansfield in the case of Fairclaim v. Shamtitle, it is quite evident that the practice had been really unsettled until the decision of that case; and that the statute of 11 George II, chapter 19, section 13, was enacted for the purpose of putting the matter at rest. Of course it is easily to be seen that when the sole question turns upon "who ought to be landlord to the tenant in possession," he should stand neuter, and his possession avail neither; and let the question be tried between the claimants. But it was not worth the tenant's while to defend the action himself, because his possession would be determined immediately, whichever side prevailed; and he was, therefore, often tempted to perpetrate a fraud upon the landlord for a trifling consideration, and thus put him to great inconvenience and expense. So the enactment of the statute would seem to have been both suitable and necessary, and the same has been re-enacted pretty generally in this country. By the words of the statute the courts can admit landlords only to defend, and difficulties have often arisen as to the meaning of the word landlord, in the act, and as to the interest in the disputed premises, which will be sufficient to entitle a person claiming title to appear and defend the action. Upon this subject Lord Mansfield says: "An ejectment is an injurious fiction for the trial of titles to the possession of lands.

In form it is a trick between two to dispossess a third by a sham suit and judgment. The artifice would be criminal unless the court converted it into a fair trial with the proper party. The control the courts have over the judgment against the casual ejector enables them to put any terms upon the plaintiff, which are just. He was soon ordered to give notice to the tenant in possession. When the tenant in possession asked to be admitted defendant, the court was enabled to add conditions; and therefore obliged him to allow the fiction, and go to trial upon the real merits. It might happen that the tenant in possession was a mere farmer at will. He was bound to give notice to his landlord. The same reason, of a fair trial with a proper party, required the landlord to be admitted defendant; with the tenant, if he was amicable; or without him, if he, contrary to the duty of his relation, should betray him. There can be no ground for admitting the landlord as co-defendant, which does not hold to his defending alone in case the other abandons. The plaintiff ought not to recover by collusion with one to the prejudice of a third; he ought not to recover without a trial with the person interested in the question, and affected by the judgment. Every point relative to the proceedings in ejectment is of consequence. I am glad we have this occasion. There are two matters to be considered:

"First, whether the term 'landlord' ought not, as to this purpose, to extend to every person whose title is connected to and consistent with the possession of the occupier, and, divested or disturbed by any claim adverse to such possession; as in the case of remainders or reversions expectant upon particular estates; secondly, whether it does not extend, as between two persons claiming to be landlords de jure, in right of representation to a landlord de facto, so as to prevent either from recovering by collusion with the occupier, without a fair trial with the other. Where a person claims in opposition to the title of the tenant in possession, he can in no light be considered as landlord; and it would be unjust to the tenant to make him co-defendant; their defenses might clash. Whereas, where there is privity between them, the defense must be upon the same bottom; and letting in the person behind can only operate to prevent treachery and collusion. It is no answer, that any person affected by the judgment may bring a new ejectment, because there is a great difference between being plaintiff or defendant in ejectment." The question in the case was, whether one claiming as lord

by escheat should be admitted defendant in ejectment, brought against the tenant in possession, by the lessor of one claiming as heir at law; and the court did not decide it for the reason that, on the recommendation of the court, the parties consented to a fair trial of the lord's title to claim by escheat. The principle, however, was established, that the statute was to be interpreted, so as to extend the word landlord to all persons claiming title, consistent with the possession of the occupier; and that it is not necessary they should previously have exercised any act of ownership over the lands in dispute. (Fairclaim v. Shamtitle, 3 Burr. R. 1290, 1294, 1295.)

This case of Fairclaim v. Shamtitle is dwelt upon here thus elaborately, for the reason that it is among the earliest cases that seems to have arisen under the act of 11 George II, chapter 19, and was very learnedly argued by distinguished counsel, and carefully examined by an exceedingly able and accurate bench of judges; and the principles established by it have been recognized both in this country and in England ever since. It was argued by the counsel for the plaintiff, who sought to deprive the person claiming as lord by escheat, of his right to defend the action, that those potential landlords cannot be within the statute; for "such" landlord, it was contended, must be a landlord to whom the tenant is obliged to deliver the declaration. The act, the counsel said, was made to defend an actual possession only; not to give one, and a case was cited to prove that the court has no jurisdiction to admit any person to defend an ejectment instead of the tenant, except one who is in some degree in possession. But the court took an entirely different view of the law, and unanimously affirined the principle above stated, that the word landlord is extended to all persons claiming title, consistent with the possession of the occupier of the land in dispute. At an early day in New York, when the old practice in ejectments prevailed in the state, a motion to admit infants to appear by guardian and enter into the consent rule was made. The declaration in ejectment in the cause was served on the tenant, who was the step-father of the infants, who claimed title to the premises in question, and resided with the tenant on the same. The tenant and his wife had been in possession for a number of years, exercising acts of ownership, and the tenant refused to defend. The court held that the infants were entitled to defend by guardian, as landlords of the premises, and declared

that "every person may be considered as a landlord for this purpose, whose title is connected to and consistent with the possession of the occupier," in accordance with the case in Burrows, above cited. (Jackson v. Stiles, 1 Wend. R. 316.) The same doctrine has been often recognized in the American courts in such cases, although it must be made to appear to the court that the person applying to be let in to defend the action is the landlord of the tenant in possession, or that a privity of interest exists between the applicant and defendant, although he do not receive rents, which seems not to be the true test. (Jackson v. McEvoy, 1 Caines' R. 151. Den v. Lanning, 6 Halst. R. 185. Buford v. Gaines, 6 Marsh. R. N. S. 34. Porter v. Robinson, 3 A. K. Marsh. R. 253. Hubert v. Alexander, 2 Call's R. 438. Wisner v. Wilcocks, 1 Coleman's Cases, 56. Saltonstall v. White, Ib. 82. McClay v. Benedict, 1 Rawle's R. 424.) But where the lessor of the plaintiff in ejectment claims no more than the interest of the tenant, the landlord is not entitled to be admitted to defend. (Jackson v. Stiles, supra.) Nor will one claiming in opposition to the title of the tenant be admitted defendant in ejectment with the tenant. Neither is he entitled to be admitted a co-defendant with the landlord of the tenant, though he claim as tenant in common with such landlord, who is willing and requesting to have him join as defendant. (Jackson v. Flint, 2 Cow. R. 594.)

The principles laid down in the case in Burrows has been expressly sanctioned by subsequent adjudications in England. For example, in one case it was moved that the cestui que trust might be made defendant in ejectment instead of the tenant in possession of the premises claimed, and it was objected on the part of the plaintiff, that the motion ought not to be granted, because the cestui que trust had never been in possession, and could not be considered as a landlord under the statute 11 George II, chapter 19, section 13. Lord Kenyon, C. J., observed: "If the person requiring to be made a defendant under the act had stood in the situation of immediate heir to the person last seised, or had been in the relation of remainderman, under the same title as the original landlord, I am of opinion that he might have been permitted to defend as landlord, by virtue of the directions of the statute; but here the very question in dispute between the adverse party and himself is, whether he is entitled to be landlord or not; and, therefore, we are not authorized to extend the provision of the