Neal v. Robertson

By the Court.

Starnes, J.

delivering the opinion.

[1.] The right to make the amendment moved in this case, has been put upon the ground of the practice which prevails in actions of ejectment at Common Law, of laying several demises in several lessors. If this were such a proceeding, there can be no doubt, that under our laws, as they now stand with respect to amendments, at any stage of the cause, an amendment might be made, inserting a new demise andnew lessors. But this would be permitted upon the principle which lies at the foundation of that proceeding, viz: that John Doe is the real plaintiff; that he is the lessor or tenant of those in whom the demises are laid; and by reason of the fiction upon which the frame of the action rests, these lessors, instead of being-different parties, are all in union of interest with the plaintiff. When, therefore, a recovery is had by and through the title of either- of these lessors, that recovery is held to enure to 'the benefit of the plaintiff, John Doe, and through him, it is supposed to operate for the benefit of that lessor- who is the actual party in interest. So, that when the writ of habere facias issues, (though at the point of time when it becomes necessary to execute it, the operation of the fiction ceases, and the Sheriff is required to put the lessor, whoso title is successful, in possession,) it issues for the benefit of the plaintiff) John Doe, or rather through him, for the benefit of that lessor who is the real person in interest. Some Courts have required, that the consent of all the lessors "Should be obtained before their names are used. In which event, this mutuality of interest is supposed to be rendered certain.

In the case before us, it is a real person who brings a real cause of action, in which a flesh and blood plaintiff alleges; that he claims title to the land in question and prays a recovery of the same absolutely and in his own right. If, now, an amendment be made and other real plaintiffs be inserted, viz: the heirs of the grantee, will not this be the introduction of. new parties plaintiff, and of a new cause of action?

If it be allowed, how' will the proceeding be regulated? In whoso favor will the writ of possession operate ? Who shall be responsible for costs ?

Those questions are suggestive of the difficulties and complications which would arise out of such a proceeding, and lead us to the conclusion, that the amendment proposed is not admissible.

Very slight legislative provision, perhaps, might make such an amendment appropriate, and give it a fit legal relation, to the other count.

Let the judgment be affirmed..