being deemed by the court a service agreeably to law, judgment may be entered by default for such part as he is possessed of; and a writ of possession may issue upon such judgment, and the action may proceed to trial for the residue against the other defendant or defendants; and the return by the sheriff of having served any such writ on the defendants marked served by him is made evidence of such defendant or defendants being in actual possession of the premises or part thereof. (Purdon's Dig. 365, § 5.)

Where a statement in ejectment against one defendant was filed before the first term, and afterward the sheriff, according to the command of his writ, summoned as defendant another person found in possession, the court held, that the statement was right, and that, if the name of the other defendant should be added, it might be done after verdict and judgment below, and the supreme court, on error, would consider it as done. (Irish v. Scovil, 6 Binn. R. 55.)

For the purpose of a writ of error, the sheriff's return is conclusive evidence that the original writ was served on the defendants; and though the statute allows judgment by default to be signed in ejectment only where the return has been verified by the sheriff's affidavit, it seems to be required only for that particular end. A judgment by default in such case will not be opened after the time for a writ of error has elapsed. (Camp v. Wells, 11 Penn. R. 207.) The return of the sheriff ordinarily is regarded as only prima facie evidence, and may be disproved; that is to say, the return is only prima facie evidence of the possession of any defendant, whether his name is in the writ of ejectment, or be added by the sheriff; and such defendant may rebut the return, by showing that he was not in possession. (Cooper v. Smith, 9 Serg. & Rawle's R. 26. Dietrich v. Mateer, 10 ib. 151. Gratz v. Benner, 13 ib. 110. Helfenstein v. Leonard, 50 Penn. R. 461. Kirkland v. Thompson, 51 ib. 216.)

In any action of ejectment brought by a vendor to enforce the specific performance of the agreement against the vendee or vendees, or persons claiming under him or them, for land upon which there is no person residing, the writ may be served on the vendee or vendees, or persons claiming under them, and if such vendee or person claiming as aforesaid cannot be found by the sheriff of the proper county, then, and in that case, the court, after the return day of the writ, may, on motion of the plaintiff or his attorney,

grant a rule on the defendant (describing the premises) to appear and plead, which rule must be published sixty days before the return day thereof, in one newspaper of the county in which the action is brought, to be inserted at least three times, and if no proper person shall appear to defend against the action, the court on proof of such publication will, on motion in open court, at the stated term, give judgment by default; but in case the vendee or purchaser, or person claiming under him, shall appear, the court must cause the person, or his legal representatives so claiming under the vendee or purchaser, to be made defendant, and the cause will then be proceeded in and tried with the same effect as if there were an actual occupation of the land, and regular service on the defendant. And any person wishing to bring an ejectment for land on which no person resides, and which lands have been sold for taxes, may bring his action, and serve the writ on the person who purchased the said lands; and if such person cannot be found in the proper county, then the court, after the return day of the writ, may, on motion of the plaintiff or his attorney, grant a rule on the defendant, describing the premises, to appear and plead, which rule must be published for sixty days successively, before the return day thereof, in a weekly or daily newspaper of the proper county; and if no person appears, then the court, on proof of the publication, will, on motion in open court, at the stated term, give judgment by default; but when the purchaser appears, or some person claiming under him, the court must cause the person, or his legal representative so claiming under the purchaser, to be made defendant, and the cause will be proceeded in and tried on the respective titles of the parties, as fully as if there was an actual occupation of the land. So, also, any person wishing to bring ejectment for land claimed adversely to him by any person or corporation, not resident or being within the county where such land lies, may bring his action, and serve the writ on any person within the county, having charge or superintendence of the land in behalf of, or as agent of, such party claiming adversely, provided, that before any trial or judgment shall be had in such suit, it shall be made to appear to the satisfaction of the court that the defendant has had notice in fact of the suit in time to appear and defend it, and if the defendant be a corporation, this notice may be given to the president or other chief officer. These provisions of the statute relative to the service of

writs of ejectment where lands are held adversely are made to apply in all cases of vacant possession; although actual notice must be given, as in other cases. (Purdon's Dig. 365, §§ 6, 7, 8, 9.)

The plaintiff is required, either by himself, his agent or attorney, to file in the office of the prothonotary of the proper county, on or before the first day of the term to which the process issued is returnable, a description of the land, together with the number of acres which he claims and declares that the title is in him; and the defendant is required to enter his defense, if any he has, for the whole or any part thereof, before the next term, and thereupon issue will be joined. (Purdon's Dig. 366, § 10.) It has been held, however, that if the præcipe contain a sufficient description of the land, it is not necessary to file another under this provision of the statute. (Cahill v. Burn, 6 Bin. R. 99.) And it has been held that the recital after a statement of the names of the plaintiffs in ejectment, "heirs at law of A," does not confine them to their title as his heirs. (Magill v. Swearingen, 10 Penn. R. 497.)

The provision of the statute requiring the defendant in ejectment to enter his defense for the whole or any part of the land claimed was soon found inexpedient as a system of practice; and a subsequent act of the legislature introduced a substitute for it, by declaring that the plea in ejectment shall be, not guilty; thereby reducing the issue to one simple plea, adapted to the trial of the merits, with more facility and certainty. (Act of April 13, 1807, § 4, Dunlop, 255.) And it is held that, on the plea of not guilty, the merits can be fully and fairly tried, and the defendant can take defense on the trial as to the whole or any part of the land, on any ground which is available to him in law; and it is now held to be the proper plea or defense in ejectment, where the merits are to be put in issue; though there may still be a plea in abatement, or perhaps something tantamount, in case of an extraordinary emergency. The regular plea in ejectment, therefore, is not guilty; what is called a disclaimer, which is sometimes improperly entered on the record, is inappropriate to the action. (Zeigler v. Fisher's Heirs, 3 Penn. R. 365. And vide West v. Strode, 13 ib. 433. McCanna v. Johnston, 19 ib. 434. Kirkland v. Thomp son, 51 ib. 216.) Under the present practice in ejectment, a formal joinder of issue is not necessary. Immediately on the plea of not quilty being put in, issue is considered as joined. It is not neces

sary even to plead the statute of limitations in ejectment. The benefit of the act is, secured to the defendant by his plea of not guilty. (Gallagher v. McNutt, 3 Serg. & Rawle's R. 409.) As before stated, the defendant in ejectment may plead in abatement; for example, that there is no such person in existence as the plaintiff; but such plea cannot be put in after a plea in bar, nor after a general imparlance. (Campbell v. Galbraith, 5 Watts' R. 428. Lyons v. Miller, 4 Serg. & Rawle's R. 280. Zeigler v. Fisher's Heirs, supra.) And yet it is held that, under the plea of not guilty, the defendant may prove that the plaintiff was dead at the time of the institution of the suit. (Patterson v. Brindle, 9 Watts' R. 98.) And it has been held that in ejectment the general issue plea is not guilty, and that under it, coverture or any other available defense may be taken. (Black v. Tricker, 52 Penn. R. 436.) But it has been decided that, where a plaintiff in ejectment has filed a description of the premises he sues for, either in his præcipe, or afterward, it is the duty of the defendant, if he does not mean to take defense for the whole premises, to file with his plea a description of that part of the premises for which he takes defense. Such a special defense operates as a disclaimer of possession, or claim to whatever land is outside of the boundaries designated by the defendant, narrows the issue to the real point of contest, and averts from the defendant a liability for costs which otherwise might attend a plaintiff's recovery of the undisputed part of the premises. But where a defendant pleads the general issue in ejectment, and files no specification of the extent to which he means to defend, he must be understood as defending for the whole premises described in the writ. (Hill v. Hill, 43 Penn. R. 521.) In case the tenant or defendant in ejectment is proved to be committing waste or destruction of or on the premises claimed, a writ of estrepement may issue to prevent the same, almost as a matter of course, and without motion to the court, by the prothonotary. (Purdon's Dig. 366, § 11.)

It is provided by statute that no writ of ejectment shall abate by reason of the death of any plaintiff or defendant, but the person or persons next in interest may be substituted in the place of the plaintiff or defendant who shall have died pending the writ. (Purdon's Dig. 366, § 12.) Under this provision, it has been held that the devisee of a trustee may be substituted; and also that if a tenant in tail institutes ejectment for land, and dies pending

the suit, the child and next heir in tail is such "person next in interest" as may be substituted as the party plaintiff. (Shoemaker v. Huffnagle, 4 Watts & Serg. R. 437.)

When the title of a plaintiff in ejectment to lands may have been changed, by sale or assignment, after action brought, the suit will not be affected thereby; but the purchaser or assignee may prosecute the action, and the verdict and judgment will inure to him, in the same manner that they would have inured to the plaintiff if no sale or assignment had taken place, and the purchaser of real estate in controversy may be substituted on record by a motion in open court. (Laws of 1850, p. 591. Purdon's Dig. 366, § 13.) And the name of a party to a suit may be changed where it appears to the court that a mistake or omission in the name or names has been made. (Laws of 1852, p. 574.) An ejectment was brought in 1821 in the name of William Cook. There were two persons of that name, the first of whom, who was the father of the other, died in 1817. In 1844 the defendant pleaded "not guilty, and the death of the plaintiff before impetration of writ." To this plea there was no replication. In June, 1845, "death of plaintiff suggested, and William Cook, executor, substituted." In 1846 the latter conveyed the premises; it was held that though the record might perhaps be amended, yet, according to it, the person meant as plaintiff was the father; and as he died before the institution of the suit, it could not be sustained; that if William Cook, the son, was the equitable as well as legal owner of the land, his conveyance after suit was equivalent to a discontinuance of the suit; that if the defendant had title by the statute of limitations at the time of the legal discontinuance of the suit in 1846, he could not be deprived of such title by the act of 26th April, 1850, permitting alienees to be substituted; that such act does not operate retrospectively as to a title perfected by lapse of time before its passage; and that whether or not the defendant was a mere trustee, the declaration of trust alleged to exist not being furnished the court, it could not determine whether any substitution could be made of persons as defendants under the act of 24th March, 1818, relative to trusts. (Morford v. Cook, 24 Penn. R. 92.)

In actions of ejectment a nonsuit may be entered against one of several plaintiffs, and a verdict and judgment in favor of the others. And where two verdicts shall be given in succession for the plaintiff or defendant in any writ of ejectment between the same parties,