#### Den on the Demise of Henry Young v. James Erwin.

AYheie the demise in an ejectment is about to expire before a tri:.: . can be had, the Plaintiff will be permitted to amend, by extending the term.

Ejectment, brought several years ago, and hath de pended so long that the demise laid in the declaration wtU *372expire before the next term, there being a continuance at this. *Mr. Taylor*moved a few days ago, on the court granting the continuance, to be at liberty t«> enlarge the demise, so as to extend it beyond the next tei m, o* ¡o the time when atrial will probably be had; and die court were about to allow the motion, when the, counsel for the Defendant insisted, that the enlargement, moved for could not he admitted, and prayed time for a few days, to prepare, himself to shew it. Whereupon the court delayed a decision upon the motion for a few days, and now on the day appointed for the. further consideration of *Mr. Taylor’s*motion, the counsel, Moore, for tic- Defendant shewed cause against it.

The Judges in every free country are bound to decide according to the established law — they cannot make precedents where, the seeming hardship of-a case may appear to them to require it. Their office, is to declare what is the existing law, not to say what it shall he in any particular case. Had they such a power, their discretion would be the governing principle, and the people slaves to their caprices. The Jaws of this country consist, partly of statutes made before the settlement of it, partly of what is called the common law, ami partly of our own acts of Assembly. This common law is kept in remembrance, by the memorials of former decisions handed down to us in the form of reports, and they are the precedents for future decisions — so far as they ascertain what the common law is in any given case, so far are the Judges authorised to say what it is in that case; but they have no power to frame a new rule either against the former precedents, or without a precedent. The attention of the Legislature was drawn to the laws-that were fit to be adopted here very soon after the formation of our present State Constitution, and they declared by the act of 1778, *c.*5, that all such statutes and such parto' of the common law as were heretofore in use within this territory, and all the acts of the late General Assemblies thereof, or so much of the said statutes, common law.and Sets of Assembly as were not destructive of, repugnant to or inconsistent with the freedom and independence of this State, and the form of government therein established, and which have not been otherwise provided for in the whole or in part, not abrogated, repealed, txpired or become obsolete, are to be in full force within this State. *373If at any time since the commencement of our Revolution; the Judges in England have given a new rule of decision different from that which wa« understood to be law before that period, upon whatever reasons they may have proceeded cither for drawing causes more and more within the arbitrium of the court, or to accommodate the Jaw to the circumstances of that country, such derisions are not precedents for our courts to follow, nor can they follow them if they pursue the directions of the act of 3778; according to the directions of which, we are to receive as the common law, such parts thereof as were heretofore in force and use in this territory ; so that in order to ascertain what is the common law here at. this time, we must in every instance recur to what was the law here at and before the time of our Revolution. 1 make these remarks because the authorities that are to be relied Upon for the support of the present motion, are almost all of them either so near to the time of our Revolution, that they had not been made public and adopted as rules of derision here, or have taken place at a time posterior to the discontinuance of our Superior Courts before, the Revolution — they'were chiefly made by *Lord*Mansfield, a man indeed of the most splendid talents, but rather too prone to innovation, ami too mu oh disposed to extend the powers of the court — his decisions on the subject now before us, are opposed to the determinations of Chief-Justice Hox.t. who possessed as much firmness and knowledge of the common law as any Judge who ever sat upon the English bench. They are opposed also to the determinations of all the other learned men who preceded him. One of the cases to be relied upon, was a case decided in June, 1769, *Doe,*lessee of *Hardiman*v. *Pilkington*and *Russel.*4 *Bur.*2447 , There the demise was enlarged. The. case was so circumstanced that the Plaintiff would have been barred by a fine had he been put to bring a new ejectment; The case now before the court' is not circumstanced like that; but if it was, we have no evidence that that decision was ever held by the courts in this country to be law in force and use here. — but more particularly it is against the current of authorities prior to that time. He then cited a case from *Coke’s*Reports, where the court refused to enlarge the demise in a declaration in ejectment, saying it was a substantial part of the declaration. He also cited *Carth.*178. 1 *Vent,*361. 2 *Barnes 13.*1 *Show.*207. *Carth.*400,402. 2 *Vent.*32L *374*¡áalk. $,57.*Chief-Justice Boit. upon such a motion, obsci vid, lie had no notion of building a new clock-house —alluding to the- fjne set upo.n Judge Hikgham — thereby intimating his clear opinion that the motion was not allowable. Chief-Justice Bodt, and the other Judges before his time, thought the demise in a declaration in ejectment, was matter of substance — it was the very thing the Plaintiff recovered. If the term was expired, there was nothing he could recover. The ejectment now used, is the same proceeding as was then used. — if the demise was a matter of substance then, it is now. It cannot be said to be immaterial, and matter of form only. Sln-uld it be totally omitted out of the declaration, the Plaintiff could not recover. The principal question in an ejectment is, could the lessor make the lease laid in the declaration. If it is stated to be the joint lease of several lessors, and any one of them hath not a legal interest in the whole, he cannot in law be said to demise the whol" — U is only his confirmation, and there can be no recovery upon it —the lessors have such a title as enables them to make the lease stated iti the declaration. If it be stated as a joint lease by two, and upon trial it appears that one is tenant for life, wiih remainder to the other in fee, the Plaintiff cannot recover — the remainder man has not a title that will enable him to make the demise laid in the declaration ; for each could not demise the whole. *Cro. J.*613. 6 *lie,*14, 15. *a,*and other books. All these cases, and they are uniform for ought I knows up to the time of the Revolution, tend to shew that the demise in a declaration in ejectment, hath always til! these modern decisions took place, been considered as a substantial part, of the proceedings, so that if the demise laid in ¡he declaration could not entitle the Plaintiff to recover, he could not recover at all. If the lessor had no right to make it, or if one of several lessors had no right to make it, if it was made after the ousterVomplaincd of by the lessee, if the time of its commencement was not ascertainable, or had not yet arrived ; or if it had expired — in all these cases, according to the ancient authorities heretofore followed in this country, the Plaintiff could not recover ; and they were such substantial parts of tiie declaration, that the-cojirt could not suffer them to be amended. These author! lie*- were leccived as evidences of **h<■*common law* in force and use here prior ¡o the act of 1778, and which is again enforced, by that act. Our courts since the Re*375volution have thought so, and I do not recollect a single instance where they have suffered the demise to be enlarged. I remember a case that happened in tbi- court not many te» ms ago, where Judge Williams refused a motion of (hi« sort, and 1 must submit to the court whether it is proper for them to establish a tie" precedent against the tniifotm t'-nor of ail the adjudications up to the time of *Lord Mansfield,*and as it sc'ins to me, against the express provisions of the act of 1778.

*E contra,*

it was argued by *Mr. Taylor*— it is not contended on the part of the Plaintiff that the court iias the power of making law, nor do we ask that they shall depart from established precedents, nor that they shall ascertain what, the common law is, by other means than those which have always been hitherto recognized as the proper ones. Our common law is the same common law that the English nation have, the different parts of which have been ascertained by judicial determinations at different periods, and preserved in the books of Reports j or are contained in maxims and general principles which supply the means of making a proper decision, where .none hath hitherto been made. These principles or maxims have their foundation in natural equity,and are adapted to the physical situation of mankind. They are the solid pillars upon which the whole structure of the common law stands. Tlie.se- maxims will always point out a proper decision, where no express decision hath already been made *;*and the Judges are at liberty to resort to them to correct the improprieties, or supply the imperfections of decisions already made. Such is the nature of man, that from a thousand causes be is perpetually subject to err, and lie frequently does so with the best, as well as sometimes with the worst motives. Judges, however virtuous or wise, are subject to this common infirmity of human nature, equally with the rest of their fellow men. If under the influence of a prevailing cause or error of the times, they have made even a series of decisions not rcconciieable to the general maxims of the common law, the Judges of after times, when the obstacles to a just decision are removed, may examine the foundations of those former decisions, compare them with the maxims of the common law, and if not found genuine by that standard, may either reject them *in tolo,*or alter them upon proper reasons, so as to reduce them to a state of *376compatibility with common law prinriplfs. Look into the law books from the earliest times, and see how that which h di been supposed to be the common law in a gre'at variety of points, hath undergone successive changes by subsequent determination, .founded, as mankind have admitted by their acquiescence, upon better reasons; yet it would be improper to say the common law is altered — it is only better ascertained as mankind have gradually acquired greater lights, more freedom for discusssion and a wider space for the exercise of the mental powers, in proportion as the tyranny of superstition and of gov. eminent ¡une worn away, and opened to the discovery of manki-u), the way 10 ti nth. These two circumstances will account fur the icpognauce of many of (he ancient decisions to the maxims of the common law. They will at the same time evince die propriety of what every lawyer knows to ho a fact, that the more modern decisions are held to be the best m¡¿enees of what flits common law is. Indeed, nothing can afford a stronger proof of the justness of these observations, than the history of amend-meats at the comín-m bw, alluded to by Chief-Justice *Molt,*in one. of the Reports cited on the other side. It proves the influence a pariicnlur cause may have in forming the decisions of-.he day. lie refused the motion not because it was unrea-.enable, but as it. tended the alteration of a record, and as he had no mind >o build a new clock-liousc. *Edward*'he first, after he had been some time in the French dominions, returned to England, and as it is supposed wanting money, found it convenient to prosecute his Judges — 'sis pin-text was, that they had altered their records. They were ruined by the enormous flues set upon them, and Chief-Justice *llingham,*among the rest : and U was afterwards a tradition, that with this tine, a clock-house was built, from which the clock might he heard imo Vresísuinsier-Halí. This gave such a simek to lite sura-ed-jug Judges, that though formerly the Judges would alter their records so as to make them speak truth, they would now no longer touch a record after it was made up — and this rule, really contrary to the common law, was so strictly adhered to, that it has been the work of many PaiTiati.vuts and ages, by a great variety of statutes allowing amendments, and iu-thorising Judges to get over nice exceptions, to get the better of it — although it had its origin not in any priori-*377pie of the eommon law, but. in the arbitrary exercise of royal power, actuated by (he avidity of the princely office. Can any example more strongly evince the propriety of re-examining former decisions, and trying them by common law maxims ? Can any example more satisfactorily prove that the modern decisions, where variant from the old, are worthy of our consideration ? Ntiiher the old nor the modern decisions are the very common law itself — they only profess to ascertain what it is. It is more reasonable to be governed by decisions made upon an examination of all the prior cases, and of their reasons and grounds, compared with the maxims of the common law, the general principles of reason and justice, and assisted with all the new lights that are furnished in modern times, than adhere, implicitly to the old decisions, as if they were the very eommon law itself— although in fact they are directly opposed to it. Then what is the common law by which we a re to be governed? It is that common law we. imported from the mother country, received here before the Revolution, and discoverable by judicial decisions, founded upon reasons consistent with its fundamental doctrines — which decisions are as likely to be found in the modern as in the ancient reports — ami as to the modern derisions, if they are to he regards d', there are many of them to be found that will jus ify the amendment moved for on the part of the Plaintiff. I will cite one. *Burr. Rep.*2447. Tnere upon a motion made to enlarge the ueaiise before trial, and upon argument all the former cas»‘s weir cited mi both sides, and the amendment was made by permission of the court. There are other eases to the same effect, but it is needless to go into a recital of them. This is in point for us, and is subsequent to all the cases on the other side *•,*and as we contend, is a proof of what the common law really is in this point. The action of ejectment is no more than a fiction throughout. It d pends entirely for ail ¡he etiica-cy it has, upon the rules of the court. It is perfectly under their power to be moulded into such shape, and so controlled by the rules of tiie court, as to be made to answer the only end it lias in view — the trial of the title between the parties, fairly, without any improper ad\outage allowed on either side. The demise is a mere fiction, and only inserted for the purpose of putting the real Plaintiff to prove that be had such a title as gives him a right to make a demise of the nature of that stated in *378the declaration : -but whether that demise be for a longer or shorter time, i« totally immaterial as to the point to be fried between the parties ; and there can be no foundation in justice to say, that a slip in laying the fictitious demise for a shorter time than the cause can be brought to trial in, shall bo no prejudicial to the party, as that he shall be nonsuited, and compelled to pay all the costs of the suit, for no other purpose, than that he may be at liberty to insert a demise of the same nature, but for a longer time, in another declaration. Such niceties are not calculat» d to promote, but to defeat the ends of justice — they do not enhance the value of tint common law, but depreciate it — flu*y do not beget rever» nee for the courts of justice, but disoon tent and murmurings against their proceedings — they deserve not the countenance of this court, much less that the court should go about to reject decisions which have been made against them. As to the practice of our courts since the Revolution, 1 am not able to say, what it has been. I have understood it to have, been the practice, tit enlarge the demise when applied for, before the irial'began I remember the case alluded to by *Mr. Moore*— ttieie the motion was made after tiic jury was sworn,rand Judge Wiíuiams refused to permit the amendment for that reason.

The counsel for the Defendant replied.

*Per curiam*

Formerly, demises in declarations in Er jeefmem, were enlarged only by consent, and not otherwise. A different practice began to prevail in ;¡¡e English courts, in the latter part of the reign of *George II.*and hath continued hitherto. It very probably p e'ailed here also. The first instance was in the twenty-first of *George II.*icportcd'in Strange, 1273. A distinción was math* about this time, between the cases where judgment had been given and where not. If it had been given, the record was made, up and could not be altered. After-wards, a distinction was made between the cases where the motion to enlarge was made pending the ejectment, and where after. In the latter case it could nor be altered, for that would be to make a new term, and not to enlarge the old. These distinctions seem to have been adopted, to get at an amendment without infringing former decisions — some of which had decided, that the enlargement could not be made where the motion was after the term expired. However, since these distinctions pre*379vailed, there, have been other decisions in favour of cn-forging the d»mise, without regarding the former rules. In tlie first of *George III,*the demise was laid to he in the SSd of *George 111.*— after verdict, the court upon argument, allowed the demise to be amended : there, the term was not commenced at the time of the trial. There was another *rase, Gowp.*841, where the demise was enlarged after judgment. In the .14th of *George III*the term was expired and allowed to be enlarged. 2 *BL Re.*940, 941. The court there said, an ejectment is the creature of the court, and open to every equitable regulation for expediting the true justice of the case. These deri-sions wi ic «!e< Iarations of what the. common law was long befare our Revolution. They were most prob »bly received here — and if only such decisions as took place before the Revolution, are evidences of the common law under fjie act of 1778, still the amendment may be made. It seems highly proper upon the reason of the tiling, that amendments of this kitul should be'made. The demise is bin a *fiction*— if is mil real. The only question in eject-Blent is, has the lessor such a title as can enable him to make such a lease as that stated in the declaration — if he has, he ought to recover. The term of the demise, is immaterial. Whether the demise he. for a longer or a shorter time, ¡he party’s title is in no wise- altered or affected by 'hat circumstance — and if in general such alterations ought to be made for expediting justice, there are very ample reasons why if: should he made in the case now before the court. This demise, was laid to he. of five years continuance, and by the delays of the court that time is expired, or is likely to expire before the cause rati he tried. The Plaintiff had reason to expect his cause would be tried before- the expiration of five years. He lias been in no fault. If is not owing to him that the cause has not been tried- Shall he then be turned round to begin his cause.' again ? Surely it would be (he excess of injustice to say so.' There arc cases enough to warrant the amendment, and it will operate no hardship upon any one— wherefore, let the demise, be enlarged, arid it was enlarged.

*Note.*— Vide *Faircloth v. Ingram, post*501. *Adams on Eject.*203, 201,