Den v. Smith

Decided November 15, 1810

Supreme Court of New Jersey · decided 1810-11-15

Date of demise in- declaration in ejectment, amendable. (b) This cause had been carried down to the Circuit, but not tried. for [*] leave to amen d the declaration. In laying the demise, a mistake had been made by stating May, instead of July, when the title intended to be tried, had commenced in the lessor. He cited 1 Barnes 24, 26, where bills against an attorney had been amended though an original proceeding; he also cited 1 Stra. 583, 3 John. 597, 3 Blac. Com. 407, State Rep. 50, and other cases, he said that all were amendable while in paper; that the ideá that a demise in ejectment was not amendable, was supported only by old cases; the modern practice was more liberal, especially in this State, where it had been practiced these twenty years. 1st. That a demise in ejectment was not amendable. 2d. That it could not be amended after issue joined and cause once carried down to trial. 3d. That at all events, it could not be amended without something to amend by; that a declaration in ejectment was in the nature of process, which'could not be amended without something to amend by; that the writ might be amended by the precipe, and the declaration by the writ, but here, there was nothing to amend by. That all original proceedings were not amendable, because nothing to amend by; they cited, 1 Salk. 48, Barnes’ Notes 16, 186. 2 Mod. 144, Tid’s practice 242, 3.

Decided 1810-11-15

By the Court.

¶1— The only question is, whether there is any difference between a declaration in ejectment, and a declaration in any other case. In respect to amendments, there are cases in the English hooks that countenance the distinction urged by the counsel for the defendant, grounded on the idea that a declaration in ejectment being an original proceeding, is in the nature of process, and having nothing to amend by, therefore not amendable; hut we think that the fictitious nature of the action so far as it respects the {*] pleadings, the reason of the thing, the modern practice and liberal policy of courts of law, especially in our own Slate, is against the distinction; let the declaration therefore be amended, on payment of costs.

¶2Rule allowed unanimously.