GEORGE W. WARD, AND RICHARD K. CALL, REGISTER AND RECEIVER (U. S.), appellants v. LEWIS GREGORY.

SAME, APPELLANTS V. JACOB ROBINSON AND F. SWEARINGEN.

A mandamus was issued by the superior court or appeals of the eastern middle district of Florida, directed to the register and receiver of the western land district of Florida, commanding them to permit the entry and purchase of certain lands. From this proceeding, the register and receiver appealed to this court. The appeal was dismissed; the proceeding at mandamus being at common law, and therefore the removal to this court should have been by writ of error.

APPEALS from the court of appeals for the territory of Florida.

Mr White moved to dismiss these cases, on the grounds that the proceedings were at law in the courts of the United States for the territory of Florida, and that they had been brought up from the court of appeals of that territory, by appeals instead of by writs of error.

On the 13th December 1826, on the application of the appellees to the superior court of appeals for the middle district of Florida, a mandamus was issued directed to George W. Ward, the register of the western land district of Florida, and to Richard K. Call, receiver of public moneys in said district, commanding them to permit the persons praying for the mandamus to enter and purchase certain sections of land, described in the writ, under the provisions of the act of congress of the 22d of April 1826, which gave rights of pre-emption in the purchase of land to certain settlers in the states of Alabama and Mississippi, and the territory of Florida. From the superior court, the case was removed by a writ of error, to the court of appeals for the territory of Florida; and, on the 21st of January 1831, the order of the superior court was affirmed by the court of appeals. From this judgment the United States appealed to this court.

The court ordered the appeal to be dismissed; the proceedings by mandamus being at common law, and therefore the cases should have been brought up by writs of error.

VOL. VII.-4 E

EX PARTE MARTHA BRADSTREET, IN THE MATTER OF MARTHA BRADSTREET, DEMANDANT.

Mandamus. In the district court of the northern district of New York, writs of right were prosecuted for lands lying in that district, and neither in the writs, or in the counts, was there an averment of the value of the premises being sufficient in amount to give the court jurisdiction. The tenants appeared, and moved to dismiss the cause for want of jurisdiction; which motion was granted. Subsequently, the demandant moved to reinstate the cases and to amend, by inserting an averment that the premises were of the value of five hundred dollars; which motion was denied by the court. The demandant also moved the court to compel full records of the judgments and orders of dismission, and of the process in the several suits, to be made up and filed, so that the demandant might have the benefit of a writ of error to the supreme court, in order to have its decision upon the grounds and merits of such judgments and orders. The district court refused this motion. On a rule in the supreme court for a mandamus to the district judge, and a return to the same, it was held, that the refusal to allow the amendment to the writ and count, by inserting the averment of the value of the property, was not the subject of examination in this court. The allowance of amendments to pleadings is in the discretion of the judge of the inferior court; and no control over the action of the judge in refusing or admitting them will be exercised by this court. The court granted a mandamus requiring the district judge to have the records of the cases made up, and to enter judgments thereon, in order to give the demandant the benefit of a writ of error to the supreme court.

In cases where the demand is not for money, and the nature of the action does not require the value of the thing demanded to be stated in the declaration, the practice of this court, and of the courts of the United States has been, to allow the value to be given in evidence.

This court will not exercise any control over the proceedings of an inferior court of the United States, in allowing or refusing to allow amendments in the pleadings, in cases depending in those courts; but every party in such courts has a right to the judgment of this court in a suit brought in those courts, provided the matter in dispute exceeds the value of two thousand dollars.

AT the January term of this court in 1832, on the motion of Mr Jones, counsel for the demandant, the court granted "a rule on the district judge of the district court of the United States for the northern district of New York, commanding him to be and appear before this court, either in person or by an

[Ex parte Bradstreet.]

attorney of this court, on the first day of the next January term of this court, to wit on the second Monday of January, anno Domini 1833, to show cause, if any he have, why a mandamus should not be awarded to the said district judge of the northern district of New York, commanding him,

"1. To reinstate, and proceed to try and adjudge, according to the law and right of the case, the several writs of right and the mises thereon joined, lately pending in said court, and said to have been dismissed by order of said court, between Martha Bradstreet, demandant, and Apollos Cooper et al.

tenants.

"2. Requiring said court to admit such amendments in the form of pleading, or such evidence as may be necessary to aver or to ascertain the jurisdiction of said court, in the several suits aforesaid.

"3. Or if sufficient cause should be shown by the said judge on the return of this rule, or should otherwise appear to this court, against a writ of mandamus requiring the matters and things aforesaid to be done by the said judge; then to show cause why a writ of mandamus should not issue from this court, requiring the said judge to direct and cause full records of the judgments or orders of dismission in the several suits aforesaid, and of the processes of the same, to be duly made up and filed, so as to enable this court to re-examine and decide the grounds and merits of such judgments or orders upon writs of error; such records showing upon the face of each what judgments or final orders dismissing, or otherwise definitively disposing of said suits, were rendered by the said district court, at whose instance, upon what grounds, and what exceptions or objections were reserved or taken by said demandant, or on her behalf, to the judgments or decisions of the said district court in the premises, or to the motions whereon such judgments or decisions were found; and what motion or motions, application or applications, were made to said court by the demandant, or on her behalf, and either granted or overruled by said district court, both before and after said judgments or decisions dismissing or otherwise finally disposing of said suits; especiany, what motions or applications were made by said demandant or on her behalf to said district court, to be admitted to amend her counts in the said suits, or to produce evidence

[Ex parte Bradstreet.]

to establish the value of the lands, &c. demanded in such counts, together with all the papers filed, and proceedings had in said suits respectively." 6 Peters, 774.

The honourable Alfred Concklin, judge of the district court of the United States for the northern district of New York, appeared before the court, by Mr Beardsley his counse1; and, in pursuance of the rule, made the following statement as a return thereto.

"To the supreme court of the United States. In answer to a rule granted by your honourable court, the certified copy whereof, hereunto annexed, was on the 21st of December instant served upon him, the undersigned begs leave respectfully to state, as follows:

"1. That after the mises had been joined in the several causes mentioned in the rule, motions were made therein. on the part of the tenants that the same should be dismissed upon the ground that the counts respectively contained no allegation of the value of the matter in dispute; and that it did not therefore appear by the pleadings that the causes were within the jurisdiction of the court. In conformity with what appeared to have been the uniform language of the national courts upon the question, and his own views of the law; and in accordance especially with several decisions in the circuit court for the third circuit (see 4 Wash. C. C. Rep. 482, 624), the undersigned granted these motions. Assuming that the causes were rightly dismissed, it follows of course that he ought not now to he required to reinstate them, unless leave ought also to be granted to the demandant to amend her counts.

"2. After the dismissal of these causes as above stated, motions were made therein on the part of the demandant, that the same should be reinstated, and that she should be permitted to amend her counts. These motions the undersigned considered it to be his duty to deny; and he can, perhaps, in no other manner more properly show cause why he should not now be required to do what he then refused to do, than by here inserting a copy of the opinion which he delivered upon that occasion. This opinion is as follows:

"This cause having at a former term of the court been dismissed upon the ground that it did not appear upon the face of the demandant's count, that the case was one to which the

[Ex parte Bradstreet.]

jurisdiction of the court extends, a motion has been made by the demandant, for leave to amend her count, and that the cause be reinstated in court. There are also a great number of other causes brought by the same demandant, standing in exactly the same predicament, and depending, of course, upon the decision of this. The question is therefore important, and by no means free from difficulty. Under these circumstances, and ample time having been afforded to the parties for thorough investigation, it was expected that the question would have been more fully and satisfactorily argued. It is incumbent upon me however now to decide it; and I shall proceed to perform that duty. The defect in question is clearly one in substance. It consists in the want of any averment in the count of the value of the land in dispute, an allegation, without which the court will not ever take jurisdiction of the

cause.

"The power of the national courts to grant amendments, depends upon the thirty-second section of the judicial act of September 24, 1789, which is as follows [this quotation is omitted as unnecessary to be here inserted]. With the exception of the last clause of this section, it is understood to relate exclusively to defects in matters of form. No proceeding in civil cases is to be rendered ineffectual by reason of any such defects; they are to be disregarded in giving judgment, except when especially set down as causes of demurrer; and are to be amended of course, without the imposition of conditions. To this extent the language of the section is also imperative. The last clause of the section however extends, in terms, to defects of every description in the process and pleadings, and confers upon the courts a discretionary power of permitting amendments therein upon such conditions as they shall direct. Without stopping then to ascertain the precise limits of this authority, it may be safely assumed that it extends to the case before the court; and the true question for decision is, whether this is a fit instance for its exercise. No affidavit has been furnished as the foundation of the motion; and I do not understand it to be pretended that there are any circumstances of a special nature, entitling the demandant to favour. Leaving out of view, therefore, for the present, a peculiarity affecting