
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1816.
    Wilson Kennedy ads. John Campbell.
    The landlord has a right to defend an action of trespass, to try title brought against his tenant.
    Trespass to try titles to land. Verdict for plaintiff. Motion for $ew trial.
    In this case it appeared that Kennedy ivas only nominal defend, ant, being a tenant of Matthew Russell, who was the real defendant: that Russell had engaged Kennedy to defend the suit in his name; and for that purpose had executed and delivered a bond of indemnity, to save him harmless against all cost, and also had employed counsel to put in a plea, and conduct the defence : but that Kennedy had colluded with Campbell, the plaintiff, and confessed to hina a judgment as tenant in possession; and when the cause was called in the course of the docket, Campbell claimed a verdict from jury upon this confession, by which means Russell was taken by surprise. He then moved the court, upon an affidavit that he wag t¡le reaj defendant a.nd claimant of the land in dispute, for leave to make himself defendant on the record, Kennedy being only his tenant. But the judge, Oolcook, refused, on the ground that he was not a party in the suit, but a third person ; and that, as long as this confession was on record, it would be irregular to admit him to come in and make a defence. A motion was then made on behalf of Russell, to set aside this confession, upon an affidavit proving the collusion of Kennedy with Campbell, after Russell had delivered him the bond of indemnity ; and also stating that he was the real owner of the land, and that Kennedy was only a tenant, who had agreed to defend the suit; but this the judge refused. And a verdict was given on the confession.
    This was a motion for a new trial, on the ground, 1. That Russell ought to have been admitted to come in, and plead to the action; and, 2. That the collusive confession ought to have been set aside, in order to have left an opening for the landlord to come in and defend his title.
    Noble, for the motion. Yancey, contra.
    
   Nott, J.

The only question in this case is, whether in an action of trespass to try title, a landlord may be substituted defendant in the place of his tenant; or be made a co-defendant with him, so as to defend the title to his own land : or whether he must lie by until his tenant is turned out of possession, and the plaintiff put in ; and then in turn bring his action, and turn him out again. I have no doubt but he may be permitted to come in and defend his title. Our act of assembly, substituting the action of trespass for the old action of ejectment, merely adopts a new mode of proceeding; but does not alter any of the principles of law relating to the subject. It would be productive of the most mischievous consequences, if a contrary construction should be given to the act. I am of opinion, therefore, that the cause should be sent back, and if the person claiming to be landlord, can shew, that under the former mode of proceeding in an action of ejectment, he could be entitled to come in and defend that title, he should be allowed that privilege now.

Gkimke, Smith and Bay, Js., concurred.  