Lessee of Robert Campbell against John Sproat.
A discovery of a material witness in another state, will, under special circumstances, be a ground to put off the trial. The court in ejectment are bound to take notice of the real parties litigating, that a fair trial may be had.
The defendant’s counsel moved that the cause should be put off on the affidavit of Alexander Snodgrass, that within the period of two or three weeks before the trial, he had discovered one Thomas M’Dowell, a witness, who lived in *20Maryland, wlio was very material for his defence; that he had conversed with him, and had procured his promise to attend; and that he had subpoenaed him, but upon going for him during the sitting of the Court, found that his child’s illness prevented his attendance, and expected he would be able to procure him to attend at another court. Snodgrass’s coming to the knowledge of the witness since the last sitting of the court in bank, had put it out of his power to procure a commission to take his testimony out of the state.
The plaintiff’s counsel objected that Snodgrass was a stranger to the record, and it was his own negligence, if he was the real landlord, that he was not named a defendant upon appearance to the ejectment; that the plaintiff claimed under the deed of the defendant himself, and the witnesses necessary for the defence should have been earlier sought for, and that one merely claiming the land without having the possession (2 Crompt. Pract. 178, 179, 180), could not be let in to defend the title, as in the case of a title by escheat. 3 Burr. 1291.
The court desired to be satisfied who were the real contending parties, declaring as in 3 Burr. 1294, per Rord Mansfield, *“an ejectment is an ingenious fiction for the J 11 trial of titles to the possession of land. 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. ’ ’
It was then proved to the court on oath, that in consequence of a conviction of Campbell of a forcible entry and detainer of the premises in question, before two justices of the peace at the suit of Snodgrass, (which had afterwards been reversed for informality, on a certiorari brought in the Supreme Court) Campbell had delivered up possession thereof to Snodgrass, who held by deed also from the defendant, he (Sproat) being entitled to certain privileges on the land, that were reserved at the time of sale.
Per Cur.
We are bound to take notice who are the real parties litigating. We are not constrained by the formal parts of the proceeding. Courts sit to do substantial justice, and though we are fully disposed to bring on causes as early as it may be done, yet this must necessarily be in those cases where the parties are prepared, or have been guilty of manifest negligence. No delay appears to be affected on the part of the defendant under the particular circumstances of this case, and Snodgrass’s having come to the knowledge of this witness so lately, the cause must go off on his paying the costs of the term.
It was then urged that Snodgrass should be substituted a co-defendant, but the plaintiff’s counsel objected thereto, saying he had slipped his time and insisted that the point *21should be argued. They came however into the measure by consent during the court, and he was substituted accordingly.
Cited in 14 Pa., 542, in support of the proposition that the court is hound to notice the real parties litigating.
Messrs. Bradford, Kittera and Montgomery, pro quer.
Messrs. Hartley, Smith and Hopkins, pro def.