
    
      Saltonstall ads. White.
    
    PROCEEDINGS in ejectment for the Holland Company lands, so called, in the county of Ontario,. as for a vacant possession.
    
      D. A. Ogden
    
    moved that Wilhem Willinclc and three others, commonly called The Holland Company, be made defendants instead of Salstonstall the present defendant.
    
      
      Troup, on the same side.
    Any one, whatever, claiming title, may be made defendant, though he has never been in actual possession; and to this point cited Sty. 568. Sid. 24. 1 Lilly’s Abridg. 674. 4 Durn. & East, 122. Comb. 13.
    
      E. Livingston, contra.
    It is settled that in proeeeding for a vacant possession, one claiming title, who is not already a party to the suit, cannot be admitted to defend, but must resort to his action of ejectment. He cited 2 Cromp. 191, 192. Statute of this state passed 21st Feb. 1788, sect. 29, 30. the first of which sections subjects tenants to penalties for not giving notice to their landlords of declarations in ejectment ; and the last of which provides that landlords may be admitted defendants by being joined with their tenants. From which it follows, that no case is contemplated by our laws of admitting any one to come in and defend who is not a party to the original suit, except a landlord who has a tenant in possession„
    
      B. Livingston, in reply.
    In this case the lands, in judgment of law, are not vacant. The suit is brought to recover several hundred thousand acres, and it appears by the affidavit, that the Holland Company have surveyed the tract, and erected buildings on some part of it.
   Per Curiam.

The strict principles applicable to proceedings as for a vacant possession in England, cannot, without manifest inconvenience, be applied to unlocated lands in this country. Besides, here has been a survey of this land, and buildings have been erected on some part of it.

Motion granted.  