Steinmets against Logan, 3 Watts 160

Per Curiam. — Where the land is vacant, the mode of proceeding by a defendant, who makes no pretence of title, and wishes to avoid a verdict for costs, was indicated, though perhaps not distinctly, in Dietrich v. Mateer, 10 Serg. & Rawle 152. By the act of the. 13th of April 1807, service of the writ is made evidence of the defendant’s possession; but he is permitted to disprove it, having disclaimed the title. This disclaimer ought to appear of record, being made either at the entry of the plea, or at a period sufficiently early to warn the plaintiff of the nature of the defence to be made at the trial.

Where defence is taken for a part, there is necessarily a disclaimer of title to the residue; and the defendant will be entitled to a verdict, at least as to that, by showing that it was not in his possession. This construction is consistent with the object of the act: which is to compel the defendant to put his title in issue, or abandon it altogether; and to make the form of the action, under the act of 1806, as advantageous in this particular as was its common law form, by which a claimant could compel the trial of title to a vacant tract by actually, sealing a lease on the land.

No disclaimer appears to have been entered here; and the court ought to have put the cause on the question of title. Judgment reversed, and a venire de novo awarded.