1. The amended complaint is perfect in its form, setting out with precision the proper elements of a declaration in ejectment. Between the original and amended complaints this difference exists: In the former, the cause of action is, right in plaintiff to possession of premises, 23d May, 1857; the latter, right in plaintiff to possession of the premises, 13th March, 1858. But the amended pleading takes the place of and supersedes the original. (Seneca Bank v. Garlinghouse, 4 How. Pr. 174; Vansantvoord on Pleading, 501.)
The amended complaint is not void but irregular in setting up a new title obtained after the institution of the suit. Such an objection, of course, would not have any force after entry of default for want of an answer, particularly as no default was taken until three months after the time foranswering had expired.
The objection that the amended complaint set up a title acquired after the commencement of the suit, must be taken in a proceeding to strike it out, as an abuse of the amending power. This not being done, the objection must be considered as waived. (Hollister v. Hollister, 9 How. 140; West v. Norton, 25 Wend. 699; City of Buffalo v. Scranton, 20 Id. 677; Platner v. Johnson, 3 Hill, 477; Wright v. Forbes, 3 How. 240; 2 Id. 146; 3 Id. 54; 7 Id. 478 .)
As to waivers of original rights, see Smith v. Curtis, 7 Cal. 584; Dunn v. Tozer, 10 Id. 167; Griffin v. Cohen, 8 How. 451; Rogers v. Rathbun, 8 How. 466 .
In Winn and Wilhite, 5 J. J. Marsh. 521, and in point, Chief Justice Robertson said: " At common law, where a defendant sets up matter puis darrein continuance, the plaintiff could take issue upon it, and thus avail himself of facts occurring after the institution of the suit."
In this State, our practice, resembling more that of the Courts of equity than those of common law, we see no good reason why the equity rule should not apply, instead of the more stringent, less reasonable practice of the common law Courts. We take the broad ground, that plaintiffs in ejectment should have the right to plead supplemental matter by amendment. Many good reasons can be assigned why this should be the rule. (See Jackson v. Kough, 1 Caine Cas. 251; Power v. Boyce, Ireland, Pasch. 1802; 1 Sch. & L. 81; Taylor v. Taylor, 3 Marsh. 19; Pr. Act, sec. 43.)
2. The default waived a jury. (Pr. Act, sec. 150, 2d sub.)
JUDGES: Baldwin, J., delivered the opinion of the Court. Cope, J., concurring.
OPINION
BALDWIN, Judge
The transcript in this case is not in a plain, legible hand, as required by the rules of this Court. We call the attention of the Clerk below to this fact, that the same defect may not again appear.
This action was ejectment. The plaintiff, after demurrer to the original complaint, filed an amended complaint, in which he set up title accruing to him after the commencement of the suit. To this complaint there was neither answer nor demurrer. A default was entered. It is said now, that the judgment afterward, by order of the Court, was irregular, and should be reversed. We do not think so. It may be very true that the plaintiff can only count on the title existing in him at the time of the suit, if the defendant does not, directly or impliedly, consent. But it is for the defendant to interpose his objection to a pleading setting up the subsequently acquired title. If he consents, by not opposing, to the plaintiff's trying the subsequently acquired title, we do not see that he can afterward object to the error, of which he has neglected, at the proper time, to avail himself. Such a judgment would not be void, but only irregular; not even irregular, if the defendant interpose no objection to it. The defendant may see that it is his interest to conclude the controversy by trying this question of title, though irregularly brought into the controversy.
Upon the face of the complaint a good cause of action appears; and it would be going beyond precedent or reason, to hold the action of the Court void, in giving effect to such a complaint, when no objection is urged by the only party who could take exception to it. If the defendant had regularly gone into a trial on the merits, upon issue joined on such a complaint, it is clear he could not then have objected to the judgment; and a judgment by default, which confesses the whole cause of action, is not less conclusive.
2. There was no error in refusing a jury trial after the default, for the simple reason that there was no issue to try.
3. The other points involve only questions of discretion of the presiding Judge, in controlling and conducting the proceedings, which we never review, unless in extreme cases, where the power of the Court is grossly abused, to the oppression of the party; and we do not see that this is manifested by the proceedings here complained of.
Judgment affirmed.