Robertson v. The Lessee of Levi Hollingsworth and John Kaighn

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 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.

Mr. White, for the plaintiff in error,--

1. No plea was filed to the additional count in the declaration, upon which the trial was had, nor was there any other issue joined at the trial.

2. The amendment, authorizing a new lessor, ought not to have been allowed.

To the new count in the declaration, which introduced a new lessor, Benjamin Spencer, and stated a demise from him; the defendants were not called upon to plead. The case remained from 1817, when the additional count was filed, until June term 1825, when the trial took place; and the verdict of the jury was upon the new count, and nothing was said upon the former counts in the declaration. The verdict was therefore given, when no issue was joined; and the plea which had been put in originally, could not be applied, without consent or notice to the defendants, to the new count. A new party had been introduced, and the defendants should have been allowed an option, whether they would expose themselves to the expenses of a trial, upon the allegations in the additional count. The jury had not the count stating the demise from Benjamin Spencer, before them, and yet their verdict was upon it, exclusively. Adams on Ejectment, 200. 205. 1 ''Caines' N. Y. Term. Rep.'' 153. 251.

The terms on which the nonsuit was taken off, were, the payment of the costs of the term, absolutely; and of all antecedent costs, which were to be returned, if a verdict should be obtained by the plaintiff in the ejectment. These costs were to depend upon the issue between the then parties; but the verdict in favour of the plaintiff, upon the new count, condemned the defendants to pay the whole costs, upon an issue, not formed at the time the Court took off the nonsuit; and upon the claim of a party, not at that time known to the Court.

It does not appear from the record, that any ground was laid for the amendment, and the Court ought to have been satisfied, before it was allowed; it would have been irregular to allow the amendment without terms.

On the institution of the suit, a capias ad respondendum, authorized by the Act of Assembly of Tennessee, was issued, against the tenant in possession, and bail given to secure the damages which might be recovered; and the case stood upon the claims of the then actual parties in the cause.

A new plaintiff could not be introduced, who could claim the benefit of the bail. 1 Scott's Revisal of the Laws of Tennessee.

Mr. Isaacs, for the defendants in error.--

No objections were made to this count, or to the issue at the trial-no allegation of surprise, but the defendants produced and examined their testimony; and the verdict was given without any exception to the pleadings.

1. It is not necessary that the record should show the grounds on which the Court set aside the nonsuit, and afterwards allowed the amendment; they are stated to have been done after motion, and a rule granted. The law of Tennessee authorizes the Court to allow amendments, beyond the statutes of amendments, and jeo fales, of England, 'provided that the nature of the action shall not be changed; and all causes shall be tried, without being entangled in the nice formalities of pleading.' (Act of Assembly of Tennessee of 1809, chap. 49.) And the Courts of Tennessee have given a most liberal construction to this law.

2. A plea of 'not guilty' had been put in, and issue joined upon it. This plea traversed all the facts in the plaintiff's declaration, and made the traverse as broad as possible. The plea put in to the declaration, in its original form, was the proper plea to the new count.

3. It is not claimed, that the bail put in, when the suit was commenced, inured to the benefit of Benjamin Spencer.

Mr. Justice TRIMBLE delivered the opinion of the Court.--