WALDEN EX DEM. DEN V. CRAIG, 22 U. S. 576 (1824)

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U.S. Supreme Court

Walden ex Dem. Den v. Craig, 22 U.S. 9 Wheat. 576 576 (1824)

Walden ex Dem. Den v. Craig

22 U.S. (9 Wheat.) 576




In ejectment, an amendment so as to enlarge the term laid in the declaration will be permitted in the discretion of the court.

But a writ of error will not lie in a case where the court below has denied a motion for this purpose.

In 1797, John Den, lessee of Ambrose Walden, instituted an action of ejectment in the United States District Court of the District of Kentucky against Richard Fen as casual ejector. The declaration states a demise for the term of ten years from 15 August, 1789. At March term, 1798, Lewis Craig and Jonathan Rose were admitted defendants in the place of Richard Fen, the casual ejector, and entered into the usual rule, confessing the lease, entry &c. At June term, 1800, judgment was rendered for the plaintiff for his term yet to come, &c., and a writ of hab. fac. poss. was awarded. On 5 September, 1800, Thomas Bodley and others, claiming as landlords of Craig and Rose, obtained an injunction to the above judgment. At May term, 1809, the bill of injunction was dismissed for want of jurisdiction. In September, 1811, Bodley and others obtained a second injunction to stay execution on the judgment at law in ejectment. At May term, 1812, the injunction was

Page 22 U. S. 577

dissolved on hearing, on bill, answers, depositions, and exhibits, and in April, 1813, the complainants dismissed their bill. Walden, on 22 May, 1819, took out a writ of hab. fac. poss. which was quashed by the court on the ground, it is presumed, that the term stated in the declaration in ejectment had expired. At November term, 1821, Walden moved the court to enlarge the term stated in the declaration. The court being divided, the motion was entered as overruled, and the plaintiff (Walden) took out a writ of error to the judgment of the court on this motion.

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.

Upon this case two questions arise:

1. Ought the circuit court to have granted leave to the plaintiff to extend the term laid in his declaration?

2. Does a writ of error lie to the refusal to grant this amendment?

It has been truly said in argument by the counsel for the plaintiff in error that the power of amendment is extended at least as far in the 32d

Page 22 U. S. 578

section of the Judiciary Act, as in any of the British statutes, and that there is no species of action to which the discretion of the court in this respect ought to be more liberally applied than to the action of ejectment. The proceedings are all fictitious, fabricated for the mere purposes of justice, and there is every reason for allowing amendments in matters of mere form. There is peculiar reason in this case, where the cause has been protracted and the plaintiff kept out of possession beyond the term laid in the declaration by the excessive delays practiced by the opposite party. The cases cited by the plaintiff's counsel in argument are, we think, full authority for the amendment which was asked in the circuit court, and we think the motion ought to have prevailed. But the course of this Court has not been in favor of the idea that a writ of error will lie to the opinion of a circuit court, granting or refusing a motion like this. No judgment in the cause is brought up by the writ, but merely a decision on a collateral motion, which may be renewed. For this reason, the writ of error must be


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