Henry Wright, William Carothers, Robert Denniston, William Patton, Thomas Burman, and James Robertson, Plaintiffs in error, vs. The Lessee of Levi Hollingsworth, and John Kaighn, Defendants in error

Henry Wright, William Carothers, Robert Denniston, William Patton, Thomas Burman, and James Robertson, Plaintiffs in error, vs. The Lessee of Levi Hollingsworth, and John Kaighn, Defendants in error. Ih a trial man-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. S¿ K.> citizens of Pennsylvania; and.the other, the demise of B.' & G. citizens of Massachusetts. The. cause coming on for trial before a. jury, th§. plaintiffs suffered a nonsuit, which Was set aside'; and .the Court, on .tRe motion of the-plaintiffs, permitted the declaration tó be amended,'by adding a- count on the demise of S., a.citizert of Missouri. The parties went to. trial without any other pleading ; and1 the -jury found for -the - plaintiff upon the third, or new count, . - and n judgment was rendered in his favpür.' llie 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 causé, before trial; aré matters so peculiarly addressed to the pound discretion of the Courts of original jurisdiction, as to be fit. for their' decision only, under- their-own rules and modes oí practice; . .This Court has always declined'interfering in such cases-- {168} 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, whieh 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 waiv.er of his,right toplead, and an election to abide-by his plea'; and if it, in terms; purports tovgo to {lie whole action, it is deemedsuffi-cientto cover the whole declaration; andputs.the plaintiff to the proof of his casé, in the new, as well as.in the' old counts. {169} " .THIS was an action of ejectment, commenced. in the Circuit Court for the district of West Tennessee, in 1813; vby the lessee of Levi Hollingsworth, and John Iiaighn, citizens of the state of Pennsylvania; against Henry W-right, and others, the -plaintiffs in error, and citizens of Tennessee. The declaration set foyth a demise from Hollingsworth and Kaiglin, to John. •Denn,. the defendant in error... A notice was served on the-tenets .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 non-suit; which was- afterwards set aside; and the plaintiff had leave to add a new count to h-is declaration, upon condition,that all the costs of. the term shouid.be páid-by him,'absolutely; and that he should1 pay all preceding costs, the same to be réfuñdéd, if he should ultimately succeed in the action. A new count was then filed, in which is stated a lease from Benjamin Spencer, a-citzen 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 tcf-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 pléa 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 ye); .their verdict was upon it, exclusively. Adamson Ejectment, 200. 205. 1 Caines' N. Y. Term, Rep. 153.. 251. The terms on which themonsuit 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. Thése 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, am thorized by the Act of. Asseipbiy of -Tennessee, was issued, against the tenant in possession, and hail given to secure the damages which might be1 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 jeofales of England, “ provided that the nature of the action shall not be cnanged; and all causes shall be tried, with.out 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 Tacts 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.- [MAJORITY — Mr. Justice-Thimble] Mr. Justice-Thimble 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 aGtion, in the manner provided for by a statute of the state. The original declaration contained two counts; the first, onthe demise of Hol-lingsworth 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, pertnitted 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 favour; to- reverse which»the defendants have prosecuted this writ of error. They alledge the judgment is erroneous and should be're-ve'rsed.— Isdy. ‘Because, the count on which judgment was rendered against them, does not show that Missouri is one of the United States. 2dly. 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. Sdly. 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.'Spehcer 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 s'econd objection,' it is urged that the admission of :the new count, on the demise of anew lessor, made á material alteration in. the suit; that the suit having been ori.ginally 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'oldand produced an 'incongruity upon the record;' the first and second counts, and the pro’ceedings oh them, being proceedings under the statute, and the third or new count, a proceeding at common law; and, that according to established principles of pracr tice, it should have been allowed, if-at all, only on payment' of costs'. This argument would be entitled to great, and' perhaps decisive influence, jf addressed to d Court; having any discretion or power over the subjectof amendments. ' But the aííowance and, refusal of' amendments in the pleadings, the granting or refusing; pew trials; and indeed, most other incidental orders made in the progress' of a' cause, before trial; aré 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, thejgeneral.inconvenience of this Court attempting to revise and correct all the intermediate proceedings in suits, betweén their commencement and final judgment, would' be' intolerable.,, This Court haá always ■ declined interfering in such cases p accordingly -it was held by the Court in Wood vs. 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 the Court below to grant a. new trial, is not ffiatter for which a writ of error lies, 5 Cranch, 11, 187, and 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 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 practicte is well settled to the contrary. The defendant has a right,' if.he will, to withdraw his former plea, and plead afiew, 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 he 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.