In a trial in an action of ejectment in which, according to the
provisions of the laws of Tennessee, the defendant was held to
bail, the declaration, stated two demises by H. & K., citizens
of Pennsylvania, and the other the demise, of B. & G., citizens
of Massachusetts. The cause coming on for trial before a jury, the
plaintiffs suffered a nonsuit, which was set aside, and the court,
on the motion of the plaintiffs, permitted the declaration to be
amended by adding a count on the demise of S., a citizen of
Missouri. The parties went to trial without any other pleading, and
the jury found for the plaintiff; upon the third, or new count, and
a judgment was rendered in his favor.
The allowance and refusal of amendments in the pleadings -- the
granting and refusing new trials, and most of the other incidental
orders made in the progress of a cause before trial are matters so
peculiarly addressed to the sound discretion of the courts of
original jurisdiction as to be fit for their decision only under
their own rules and modes of practice. This Court has always
declined interfering in such cases.
After the filing of a new count to a declaration, the defendant,
who to the former counts has pleaded the general issue or any
particular plea, may withdraw the same and plead anew, either the
general issue or any further or other pleas which his case may
require; but he may, if he pleases, abide by his plea already
pleaded and waive his right of pleading
de novo. The
failure to plead and going to trial without objection are held to
be a waiver of his right to plead, and an election to abide by his
plea, and if it in terms purports to go to the whole action, it is
deemed sufficient to cover the whole declaration, and puts the
plaintiff to the proof of his case in the new as well as in the old
counts.
This was an action of ejectment commenced in the Circuit Court
for the District of West Tennessee in 1813 by the lessee of Levi
Hollingsworth and John Kaighn, citizens of the State of
Pennsylvania, against Henry Wright and others, the plaintiffs in
error, and citizens of Tennessee. The declaration set forth a
demise from Hollingsworth and Kaighn to John Denn, the defendant in
error. A notice was served on the tenants in possession who, at
June term, 1813, appeared, and put in the plea of "not guilty." At
June term, 1817, after a jury had been sworn in the cause, the
plaintiff suffered a nonsuit, which was afterwards set aside, and
the plaintiff had leave to add a new count to his declaration, upon
condition that all the costs of the term should be paid by him
absolutely, and that he should pay all preceding costs, the same to
be refunded, if he should ultimately succeed in the action. A
new
Page 26 U. S. 166
count was then filed in which is stated a lease from Benjamin
Spencer, a citizen of Missouri. To this count no plea was filed,
and at June term, 1825, a trial was had and a verdict and judgment
were rendered for the plaintiff upon the last count in the
declaration.
This writ of error was brought to reverse the judgment.
Page 26 U. S. 167
MR. JUSTICE TRIMBLE delivered the opinion of the Court.
This action of ejectment was commenced in the circuit court held
in East Tennessee by suing out a writ of
capias ad
respondendum, accompanied with the declaration, and the
tenants in possession held to bail to answer to the action in the
manner provided for by a statute of the state. The original
declaration contained two counts -- the first on the demise of
Hollingsworth and Kaighn, citizens of Pennsylvania, the second on
the demise of Joseph Blake and Daniel Green, citizens of
Massachusetts.
The tenants appeared and pleaded not guilty, upon which issue
was joined. A trial was had, and a nonsuit suffered by the
plaintiff which was set aside on the payment of costs. After these
proceedings, the court, on the motion of the plaintiff, permitted
the declaration to be amended by adding a count on the demise of
Benjamin Spencer, a citizen of Missouri. The parties went to trial
without any other pleadings, and a verdict having been found for
the plaintiff upon the third or new count, judgment was thereon
rendered in his favor, to reverse which the defendants have
prosecuted this writ of error.
They allege the judgment is erroneous and should be
reversed:
Page 26 U. S. 168
1st. Because the count on which judgment was rendered against
them, does not show that Missouri is one of the United States.
2d. Because the court permitted the declaration to be amended by
adding a new count on the demise of Benjamin Spencer, and
especially as the amendment was permitted with payment of
costs.
3d. Because no plea was filed to the new count, nor any issue
made up thereon.
The first objection was very properly not pressed in argument.
The count alleges Benjamin Spencer to be a citizen of the State of
Missouri. This count was filed after Missouri was admitted as a
state into the Union, and there can be no question but that this
and every other court in the nation are bound to take notice of the
admission of a state as one of the United States without any
express averment of the fact.
In support of the second objection, it is urged that the
admission of the new count on the demise of a new lessor made a
material alteration in the suit; that the suit having been
originally commenced under the state practice, by writ of
capias ad respondendum, to which the former lessors only
were parties, the amendment was, in substance and effect, the
institution of a new suit, or at least grafting a new one upon the
old, and produced an incongruity upon the record, the first and
second counts, and the proceedings on them, being proceedings under
the statute, and the third or new count, a proceeding at common
law, and that according to established principles of practice, it
should have been allowed, if at all, only on payment of costs.
This argument would be entitled to great and perhaps decisive
influence if addressed to a court, having any discretion or power
over the subject of amendments.
But the allowance and refusal of amendments in the pleadings,
the granting or refusing new trials, and indeed most other
incidental orders made in the progress of a cause before trial are
matters so peculiarly addressed to the sound discretion of the
courts of original jurisdiction as to be fit for their decision
only, under their own rules and modes of practice. This, it is
true, may occasionally lead to particular hardships, but on the
other hand, the general inconvenience of this Court attempting to
revise and correct all the intermediate proceedings in suits,
between their commencement and final judgment, would be
intolerable. This Court has always declined interfering in such
cases; accordingly it was held by the Court in
Wood v.
Young, 4 Cranch 237; that the refusal of the court
below, to continue a cause after it is at issue, is not a matter
upon which error can be assigned. That the refusal of
Page 26 U. S. 169
the court below to grant a new trial is not matter for which a
writ of error lies,
9 U. S. 5 Cranch 11,
9 U. S. 187, and
17 U. S. 4
Wheat. 220, and that the refusal of the court below to allow a plea
to be amended or a new plea to be filed or to grant a new trial or
to continue a cause cannot be assigned as a cause of reversal or a
writ of error. We can perceive no distinction in principle between
these cases and the one before the Court. We must take the
declaration, including the amendment, as we find it on the record.
Nor can we interfere because the court below did not, as it ought,
require the costs formerly accrued to be paid as a condition of the
amendment.
The authorities cited by the learned counsel do not, we think,
support his last position -- that the judgment is erroneous because
a plea was not filed to the new count. They prove unquestionably
that upon the amendment's being made to the declaration by adding a
count, the defendants had a right to plead
de novo; they
prove nothing more. They do not show that the defendants, in such
cases, must necessarily plead
de novo, or that judgment
may be entered by default for want of a plea to the new count if,
before the amendment, he has pleaded the general issue. We think
the practice is well settled to the contrary. The defendant has a
right, if he will, to withdraw his former plea and plead anew,
either the general issue or any further or other pleas which his
case may require, but he may, if he will, abide by his plea already
pleaded, and waive his right of pleading
de novo. His
failure to plead and going to trial without objection are held to
be a waiver of his right to plead, and an election to abide by his
plea, and if it in terms purports to go to the whole action, as is
the case in this instance, it is deemed sufficient to cover the
whole declaration, and puts the plaintiff to the proof of his case
on the new as well as on the old counts.
This is the general doctrine in other forms of action, such as
trespass and assumpsit, and we see no reason to distinguish the
action of ejectment or take it out of the general rule.
Judgment affirmed with costs.
