Jackson ex dem. Harris v. Murray

1 Cow. 156

• Court: New York Supreme Court
• Decided: August 15, 1823
• Status: Published

Opinion

Curia.

The addition of a new demise is, generally, a matter of course, where the proposed lessor has a subsisting title. (Jackson, ex dem. Finch et al. v. Kough, 1 Caines, 251.), But the defendants are bona fide possessors of a military lot. For the recovery of such a lot the statute declares that the action must have been brought before the 1st day of January, 1823, and be prosecuted to eifect without wilful delay, or the person claiming title shall be forever thereafter barred from recovering. The defendants are actual settlers upon the land under colour of bona fide purchases ; and there is no dispute that they are within the purview of this act of limitation.

It seems to us, that by allowing this amendment, we are indirectly depriving these defendants of all benefit under the act. The title passes to Dill: he releases to Harris, while the lot was possessed adversely by another. No title passed by this release, and Dill might have had ejectment. To allow this amendment, would be to introduce a new cause of action. It is like allowing a declaration to be served de novo, and ordering it to stand nunc pro tunc. The rule is well established, and has often been acted upon in the English Courts, that where the statute of limitations has attached, such an amendment will not be allowed. In the case of Goff, q. t. v. Popplewell et al. (2 T. R. 707-8,) the Court say, that “ they would not in their discretion permit the proposed amendments to be made, which would, in effect, arnount to a permission to bring another action, to which otherwise the defendants might plead the statute of limitations.,’1

That was a qui tam action upon the statute of usury ; but the Court said, “ there was no difference between civil and penal actions, as to amendments at common law, while all was in paper.” In Steel, q. t. v. Sowerby, (6 T. R, 171) Ihesame point was decided; and though it was ruled otherwise in Cross v. Kay, (6 T. R. 543) and the former decisions are placed on the ground of great delay in the plaintiff to prosecute his suit; yet Lawrence, J. says, “ if the amendment prayed for had gone the length of introducing a new charge against the defendant, I should have thought it came too late, on account of the statute of limitations.” In the case of Maddock, q. t. v. Hammet et al. (7 T. R. 51) this question again came up, and the Court granted the amendment, saying they did this, “ though the time limited for bringing a new action had expired; in as much as the amendment prayed for was not to introduce a new substantive cause of action.” And in the case of Low, q. t. v. Little, (17 John. 346) a majority of the Court, in a similar case, inclined against an amendment, though there had been no delay in prosecuting the suit; and they were unanimous in thinking that there could not be an amendment by introducing any new substantive cause of action. In Lyon, ex dem. Eden & Wood, v. Burtis et al. (18 John. 510) which was a strong case of amendment, this Court say, (p. 512) “ it is not pretended by the defendants that any injury will be done them by the amendment, farther than to remove a mere technical objection.” But, in this case, we are asked to vary the whole ground.

Here is no subsisting title in Dill, for the purposes of a new action. He is barred, unless we allow him to come in upon this motion to amend. (Jackson v. Richmond, 4 John. Rep. 483.)

Motion denied.

(a)

F or the great liberality of the Courts in allowing amendments, before, at and after trial, in these actions of ejectment, vid. Rnnn. 226 to 234, and the cases there cited; Adams on Eject. 200 to 208, and the cases there cited, and at id. p. 202, vid. n. (6) by Mr, Haggles to the American edition. Vid. also Lessee of Samuel Howard v. Pollock & Burk, 1 Yeates' Rep. (Penn.) 509. In this case, it was moved at vV. P. to amend by altering the. date of the demise. But per Cur. “ We cannot entertain such motions at nisi privs, which is peculiarly appropriated to the trial of causes. Though great liberality is now used in ejectment cases, as to enlarging the term, and confirming verdicts, where trials have been had upon the merits, it may be doubtful how far the Court would go in making an entire new lease' The old authorities (1 Vent. 361. 1 Show. 207. 2 Barn. 13, 154. Contra, Comb. 290. Carth. 178. 4 Burr. 2447. See 2 Bl. Rep. 940. 2 Burr. 1161. Cowp. 841,4) are against such an amendment clearly, and we no^ recodec^ such a motion having been made in Pennsylvania.” In Lessee of Gardner v. Wilson, (2 Yeates, 186,) it was said the Court would amend by enlarging the term after judgment, though it was refused after tlle &reat delay ™ that cause, of more than 20 years. In Den, ex dem. hoover, v. Franklin et al. (2 South. N. J. Rep. 850,) the plaintiff Was allowed to amend the timé of the demise after non-suit; and the Court said that “ a motion for an amendment might be heard at any time, and at almos*’ any stage in the progress of a cause.” And vid. Jackson, ex dem. Young, v. Young, (ante, 131.)

In Doe v. Pilkington & Russel, (Burr. 2447) an amendment in form, by a^elan& the time of the demise, so as to avoid the statute of limitation upon a 6ne, the plaintiff having been delayed -by injunction, was moved"; and Yated & Aston, Justices, “ thought that the plaintiff’s being out of time to make a new entry, was a reason for .amending, and cited the case of The executors °f Duke of Marlborough v. Widmore, in 2 Str. 890, (and also, more at large, and rightly taken, in Fits-Gibbon, 193) where the declaration was amended by laying the promise as made to the executors, instead of the £estator . because the plaintiff’s action would otherwise have been "lost, ... . , . , , by the statute of limitations having run upon the promise made to the testator.” In Woodroffe v. Williams, (6 Taunt. 19.1 Marsh. Rep. 419, S. C.) the C. P. refused, in a penal-action, to alter the term of which the declaration was entitled, in order to bring it within the time limited, by'the statute for the commencement of the action; and where an ejectment had been brought, and judgment recovered in 1798, and the term of ¿emjse sjnce expired, the Court (1819, Trinity Term) refused to ' grant a rule for enlarging the term and issuing a sci. fa. the possession having changed, and the person who was the owner having since died. (Doe v. Rendell et al. Chit. Rep. 535.) But an amendment of the demise was, x ' allowed, where it was laid before the title accrued, (Doe v. Miller et al. id. 536) and that too, where the ejectment was for a forfeiture for dilapidations. y.) And a declaration in ejectment was amended b,y leaving out the word tenements, even after error brought, (id. and vid. Peaceable v. Watson, 4 Taunt. 16.)