There is no precedent for such a motion as this, and therefore I cannot consent to it. The defendant must enter his defense as he thinks proper; but I think the proposal made by plaintiff's counsel a fair one, and fit to be acceded to, namely, that when the lands shall be run out by the surveyor, if the survey should include the lands claimed by 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 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 was not that the lands described in the declaration were not plaintiff's, for he admitted them to be so, but that *Page 97 the boundaries in the declaration did not comprise the lands which defendant claimed. But the opinion of the Court being against him, he was obliged to accept of the proposal recommended to him.
See Troxler v. Gibson, post, 465, and Cowper v. Edwards, ante, 19.