Ex parte Bradstreet.

Cited by the judge, 1 Cow. 156; 2 [*645

17 Johns. 346.

There is a further objection. Before these causes were commenced, a statute was passed in New York, abolishing writs of right, after a certain day, and which day arrived before the motions to amend were made. When the motions to amend, therefore, were made, such actions could not be brought in New York in its own courts. That statute was equally applicable to the district court; so that no writ of right could then be prosecuted in that court. This was a good objection to the amendment. The amendment would have been an evasion of the statute abolishing writs of right: it would, in effect, have given an action which *had been abolishedvirtually repealing the statute. T. R. 707-8; 6 Ibid. 171, 548; It is submitted, that the district judge, in refusing to allow the amendments, decided correctly. But if he did not, this court will not proceed by a mandamus to correct his errors. Such a proceeding is not an exercise of original jurisdiction; and if it is the employment of the appellate power of this court, it cannot be used in this form. Congress may extend the powers of this court to any cases under the constitution, of judicial cognisance; but they have not given the power, by proceedings for a mandamus, to examine into the action of the inferior courts in matters of this description. The power to issue a mandamus exists under the 14th section of the judiciary act of 1789, and it does not comprehend this case. The writ of mandamus is never used for such purposes. It does not lie, to control or coerce the discretion of a subordinate tribunal. 1 Wend. 299; 1 Cow. 423; 2 Ibid. 458, 483; 6 Ibid. 393; 7 Ibid. 363, 523; 1 Paine 453.

No doubt is entertained of the power of this court to award a mandamus for the last purpose indicated in the rule; that is, to compel records to be made up and filed. 1 Paine 455. This court may review the judgments of the district court by writ of error. But no such judgment can be brought up, until a record has been filed. This court may compel such record to be filed. That power is "necessary," to enable this court to exercise its jurisdiction by writ of error. The writ of mandamus is, for that purpose, "agreeable to the principles and usages of law." This court, then, for that purpose, may award it. For that purpose, the parties interested in this case have no objection that it should issue.

What will it bring up? A judgment of the court dismissing the cause for want of jurisdiction. If that judgment was correct, it must be affirmed. Let it be brought here, if the demandant asks it. Whether it is a final judgment, has not been examined; nor is it regarded as material. Perhaps, however, the better opinion is, that it is not a final judgment. Judgments of nonsuit cannot be removed by writ of error. *3 Dall. 401; 4 Ibid. 22; 4 Wheat. 73; 5 Cranch 280; 7 Ibid. 152.

[*646

On a writ of error to an inferior tribunal, which had given a judgment on the merits, if it appears from the pleadings, that the court below had no jurisdiction, this court cannot award a venire de novo. 3 Dall. 19. Then, why require a record to be made out? These matters are stated, not as objections; for none are made, if these were in fact final judgments. So far, the jurisdiction of this court is conceded.

But it may perhaps be said on the other side, that the judgments which have been rendered are not final judgments; and therefore, not removable by writ of error. That it is, therefore, proper to compel the court to rein

Ex parte Bradstreet.

state and try the causes, to the end that final judgments may be rendered. 6 Wheat. 601-2; 6 Pet. 657; 2 Laws U. S. 64, 22. For what end reinstate, try and determine them? If judgments should pass in favor of the demandant, they would be erroneous. She, therefore, cannot desire such judgments. The pleadings being defective, and fatally so, she cannot possibly have a valid judgment on them. If rendered in her favor it, would be erroneous; if rendered against her, she could not reverse it. No venire de novo could be awarded in such case. 3 Dall. 19. But if this court may compel the court below by mandamus to reinstate and try the causes, and render final judgments therein; yet it cannot, as it is supposed, compel that court to grant the amendments asked for. The judgments will be just as final without, as with the amendments.

It has already been said, that a mandamus does not lie to coerce the discretion of a subordinate tribunal. Now, it is insisted, that it was discretionary with the court below to make, or refuse to make this amendment. That the question was for that court alone, and that it cannot be controlled here. Under the act of congress, amendments, like the one in question, are not demandable of right. 1. The judiciary act of 1789 (§ 32), in its first clause, declares, that no summons, &c., shall be abated, &c., "for any defect or want of form." But this is not a formal defect; it is one of substance. *2. That section declares, that the court may amend any defect, upon

*647] such conditions as the court, in its discretion, shall prescribe. This

section gives, perhaps, full power to the court below to make the amendment. But it is to be made on condition-such condition as the court in its discretion shall prescribe. Permitting amendments is a matter of discretion. 5 Cranch 17; 6 Ibid. 267 n. ; Ibid. 217; 9 Wheat. 576; 11 Ibid. 280; 3 Pet. 32; 6 Ibid. 656; 1 Paine 456-7. The court below, therefore, is not compellable by mandamus to allow them.

It is then submitted to the court: 1. That the court below decided correctly in refusing the amendment-it being a writ of right. It would not have been made in England. It should not have been made, when moved, as no writ of right could then have been prosecuted in New York. 2. It was at all events a matter resting in the discredition of that court, which cannot be controlled by a mandamus.

Jones, for the defendant.

MARSHALL, Ch. J., delivered the opinion of the court.-After hearing counsel, and considering the cause shown by the honorable the judge for the court of the United States for the northern district of New York, this court is of opinion, that it ought not to exercise any control over the proceedings of the district court in allowing or refusing to allow amendments in the pleadings; but that every party has a right to the judgment of this court, in a suit brought by him in one of the inferior courts of the United States, provided the matter in dispute exceeds the sum or value of $2000.

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, is, to allow the value to be given in evidence. In pursuance of this practice, the demandant in the suits dismissed by order of the judge of the district court, had a right to give the value of the property demanded in evidence, at or

Ex parte Bradstreet.

before the trial of the cause; and would *have a right to give it in evidence in this court. Consequently, he cannot be legally prevented from bringing his case before this tribunal. The court doth, therefore, direct that a mandamus be awarded to the judge of the court of the United States for the northern district of New York, requiring the said judge to reinstate, and proceed to try and adjudge according to the right of the case, the several writs of right, and the mises thereon joined, lately pending in said court, between Martha Bradstreet, demandant, and Apollos Cooper et al., tenants.

The following mandamus was issued by order of the court. United States of America, ss. To the Honorable Alfred CONKLIN, judge of the district court of the United States for the northern district of New York, greeting: Whereas, one Martha Bradstreet hath heretofore commenced and prosecuted, in your court, several certain real actions, or writs of right, in your court lately pending between the said Martha Bradstreet, demandant, and the following named tenants severally and respectively, to wit, Apollos Cooper and others [naming them]. And whereas, heretofore, to wit, at a session of the supreme court of the United States, held at Washington, on the second Monday of January, in the year 1832, it appeared, upon the complaint of the said Martha Bradstreet, among other things, that at a session of your said court, lately before holden by you, according to law, all and singular the said writs of right then and there pending before your said court, upon the several motions of the tenants aforesaid, were dismissed, for the reason that there was no averment of the pecuniary value of the lands demanded by the said demandant in the several counts filed and exhibited by the said demandant against the several tenants aforesaid; which orders of your said court, so dismissing the said actions, were against the will and onsent of demandant; whereupon, the said supreme court, at the instance of said demandant, granted a rule requiring you to show cause, if any you had, among other things, why a writ of mandamus from the said supreme court, should not be awarded and issued to you, commanding you to reinstate and proceed to try and adjudge, according to the law and right of the case, the several writs of rigùt aforesaid, and the mises therein joined. And whereas, at the late *session of the said supreme court, held at Washington, on the second Monday ot January, in the year [*649 1833, you certified and returned to the said supreme court, together with the said rule, that after the mises had been joined in the several causes mentioned in the said 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; that, in conformity with what appeared to have been the uniform language of the national courts upon the question, and your own views of the law, and in accordance especially with several decisions in the circuit court for the third circuit (see 4 W. C. C. 482, 624), you granted their motions; and assuming that the causes were rightly dismissed, it follows, of course, that you ought not to be required to reinstate them, unless leave ought also to be granted to the demandant to amend her counts: And whereas, afterwards, to wit, at the same session of the said supreme court last aforesaid, upon consideration of your said return and of the cause shown by you therein against the said rule's being made absolute,

Rhode Island v. Massachusetts.

and against the awarding and issuing of the said writ of mandamus, and upon consideration of the arguments of counsel, as well on your behalf, showing cause as aforesaid, as on behalf of the said demandant, in support of the said rule, it was considered by the said supreme court, that you had certified and returned to the said court an insufficient cause for having dismissed the said actions, and against the awarding and issuing of the said writ of mandamus, pursuant to the rule aforesaid; the said supreme court being of opinion, and having determined and adjudged upon the matter aforesaid, that in cases where the demand is not made 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 the said supreme court, and of the courts of the United States, is to allow the value to be given in evidence ; that, in pursuance of this practice, the demandant in the suits dismissed by order of the judge of the district court, had a right to give the value of the property demanded in evidence, either at or before the trial of the cause, and would have a right to give it in evidence *in the said *650] supreme court; consequently, that she cannot be legally prevented from bringing her cases before the said supreme court; and it was also then and there considered by the said supreme court, that the peremptory writ of the United States issue, requiring and commanding you, the said judge of the said district court, 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 therein joined, lately pending in your said court between the said Martha Bradstreet, demandant, and Apollos Cooper and others, the tenants aforesaid: Therefore, you are hereby commanded and enjoined, that immediately after the receipt of this writ, and without delay, you reinstate and proceed to try and adjudge according to the law and right of the case, the several writs of right and the mises therein joined, lately pending in your said court between the said Martha Bradstreet, demandant, and the said Apollos Cooper and others, the tenants herein-above named, so that complaint be not again made to the said supreme court; and that you certify perfect obedience and due execution of this writ to the said supreme court, to be held on the first Monday in August next. Hereof fail not, at your peril, and have then there this writ.

Witness the honorable John MARSHALL, chief justice of said supreme court, the second Monday of January, in the year of our Lord one thousand eight hundred and thirty-three. W. T. CARROLL,

*651]

Clerk of the Supreme Court of the United States.

*STATE OF RHODE ISLAND, Complainant, v. STATE OF MASSA

CHUSETTS.

MR. Robbins, solicitor for the complainant, having renewed his motion of last term, in this case, prayed the court to award such process, and in such form, as the court may deem proper.

ON consideration of the motion made in this case, it is now here ordered by the court that process of subpoena be and the same is hereby awarded, as prayed for by the complainant, and that said process issue against "The Commonwealth of Massachusetts."

INDEX

TO THE

PRINCIPAL MATTERS CONTAINED IN THIS VOLUME.

The References in this Index are to the STAR *pages.