Wright v. Lessee of Hollingsworth,
26 U.S. 165 (1828)

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U.S. Supreme Court

Wright v. Lessee of Hollingsworth, 26 U.S. 1 Pet. 165 165 (1828)

Wright v. Lessee of Hollingsworth

26 U.S. (1 Pet.) 165


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

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