[indorsement]

Sup. Court Ist Cir. Jany 1842

Paulding vs. Bagg et al

Writ of Error

Mo. to quash &

Mo. to amend.

29 March ’42 Mem0 of Opinion.

[opinion]

Morrison Paulding vs. Ross Wilkins & John S. Bagg, Jr impleaded with E. J. Roberts

Writ of Error to Wayne Circuit (Court

A motion is made by the Defts. in Error that the Writ be set aside and quashed, on the ground that judg4 in the Court below was rendered against three Defts, to wit the present Defts in Error — Wilkins and Bagg, and also against Elijah J. Roberts.

From the return of the .record to the writ of Error it appears that Judg* was rendered against all the three Defts below.

The motion must be granted unless, the Court shall grant leave to amend the writ of Error, on the motion made by PlfFs in Error.

The only question therefore is whether the amendment shall be allowed.

*163In support of the mo. to amend the counsel for the Plff relies upon the Sect. 20 & 21, Chap. 8, Title 2 part 3a of the Rev. Stat. Sect. 20 declares that “The Court in which any civil action is pending, may at any time before judg* rendered therein, allow amendments, either in form or substance, of any process, pleading or proceedings in such action, on such terms as shall be just and reasonable”—

The counsel for the Defts contend that this provision does not include Writs of Error, but only original suits pending in Court and before final judg1 therein — in as much as there is also in the Rev. Stat. express provision made for amendments in causes pending on Writ of Error. The Sect. 21 of the Chap, above cited, providing that defects or imperfections in matter of form found in the record, or proceedings, may be amended by the Court into which the record shall be removed by Writ of error.

And that by Chap. 4. Title 4. p* 3 of the Rev. Stat. regulates the proceedings on writ of error.

Sect. 6 is in these words “The proceedings upon writs of error as to the assignment of error, and as to the appearance of the Deft in error, and the pleadings, judg* and all other matters not herein provided for, shall be according to the Course of the Common law, as modified by the practice and usage in this State, and such general rules as shall be made by the Supreme Court.”

We think the 20 Sect, does not relate to amendments on Writ of Error — The amendments there allowed are . expressly limited to amendments before final judg* and the Judg* in the Circuit Court was a final judg* — The judg‘ denominated final, does not mean a judg‘ on a writ of error in the appellate Court.

—And the statute having provided expressly for amendments in causes pending on Writs of Error, this court must be governed, in deciding this motion, by the course of the Com. *164Law, and the practice and usage in this State — Because this court has not by any general rules provided for amendments—

Nor has any usage or practice obtained in this State except the course of the Com. law practice in this respect.

By the practice of the Com. law a writ of error cannot be amended by adding another party.

Nor is [it] allowed in England since the 5 G. 1 Ch. 13 which authorizes amendment in all writs of Error wherein there shall be any variance from the original record, or other defect/

One case is found (2 St. 682) where an amendment was allowed by adding other parties; but this has been overruled — 2 Str. 1110 — 1 Lord Raym 71 2 Lord Ray” 1403. & 8 T. R. 302.

In the case of Andrews & another, vs. Bostwich, 3 Mass R. where 2 only of those Defts against whom judg‘ was rendered, brought error, the writ was quash3.

The case of Clapp vs. Bromagham et al, 8 Cowan & 9 Cowan, in the Court of Errors, cited in support of the mo. to amend, does not apply to this question — That was a Writ of Error on a Judg* of Partition of real estate—

The Petition was' filed against Clapp, and others unknown, which was in conformity with the requirements of the Stat. respecting partition—

Clapp, the only one. of the respondents named, or known, brought writ of error in his own name, omitting the words, “and others unknown[”]—

—Deft in Error moved to quash on the ground that all the Respondants had not joined in bringing error — Plff in Error moved to amend by adding, and others unknown — The amendment was allowed, on the ground that it was a matter of form — merely descriptive of the proceedings—

And Spencer, Senator, in giving .the opinion of the Court, *165said the proceedings below were not according to the course of the Com. law, but peculiar, and given by the Stat. which declares that “any of the parties to such judg* may bring writ of Error. — The judg* determines nothing, nor can this court determine any thing respecting the persons “unknown.” [”]

The only question which can be agitated in this court relates to the rights of Clapp, the Plff in Error.

The practice of summons & severance does not apply. The reason given why all the Defts should join in a Writ of Error, is to prevent multiplicity of suits — that is, different suits presenting the same question, but if the judg* in partition be final, the same question will not be presented on different writs of error — But in this case the record is not correctly described — and the amendment was allowed.—

It will be seen therefore that in the case of Clapp vs. Bromagham, the amendment was allowed not for the purpose of adding substantially other parties, but merely that the writ might correspond with the description of the cause in the record — and on the ground that the proceedings were not according to the course of the Com. law.

This same question was decided in this Court on the 5 March ’41 in the case of Ives vs. Chaffee — that was originally a Suit appealed from a justice of the peace into the Cir. Court of Wayne Co.—

Judg* was rendered in the Cir. Court against Ives the appellant, and Dubois his surety — Ives only sued out a Writ of Error — A mo. was made to quash on the ground that Dubois ought to have joined — and a Mo. by Plff to amend— The Mo. to amend was denied, on the authorities above cited —and the writ was quashed — Mo. to amend denied & the mo. to quash is granted—