Cumberland County NcArchives Court.....Davis, Vs. Evans 1811-18 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:19 pm Source: North Carolina Reports Written: 1811-18 July Term 1812. THOMAS DAVIS and ARCHIBALD McNEIL v. THEOPILUS EVANS and others. From Cumberland. A special demurrer being filed to a declaration, and sustained, the court will give leave to amend the declaration on payment of costs. In this case a declaration had been filed, to which the defendant demurred specially, and after argument at the Spring Term, 1812, Locke, J., sustained the demurrer, but gave the plaintiffs leave to amend on payment of costs. At Spring Term, 1813, Williams for the defendants obtained a rule to show cause why so much of the order as gave the plaintiffs leave to amend should not be vacated, on the ground of error, irregularity and want of authority in the judge to make such an order; and the case was sent to this Court upon this rule. Bela Strong for plaintiffs. By the Court. This question is, in effect, whether the court below had power to allow the amendment, for if the court had no authority, the granting of the order was a perfect nullity. If a strict and literal construction be placed upon the act of 1790, it will be found that in no case whatever can matter of form be amended, whereby any end is obtained; for by the words of the act this power seems to be only exercisable as to imperfections, which are not set down as causes of demurrer; and by the preceding part of the same act such defects are cured by not being demurred to. The last part of the section, however, has these general words, "that the said courts may at any time permit either of the parties to amend anything in the pleadings and process, upon such conditions as the said courts respectively shall, in their discretion and by their rule, prescribe." Unless, therefore, the courts under these last words have power to permit the parties to amend in cases of special demurrer, the consequence would be that the plaintiff may be permitted to amend, in substance, though there be a general demurrer; and yet, as to a mere slip in matter of form, not essential to the justice of the case, which had been seized upon by a vigilant counsel, the hands of the court would be completely tied. As, therefore, this construction can be completely obviated by allowing to the latter words an import which they certainly bear, that of amending anything at any time, we are of opinion that it was competent for the court below to make such order, and that the rule for setting aside the order be discharged. Additional Comments: North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. Uzzell and Company, State printers and binders, 1910. File at: http://files.usgwarchives.net/nc/cumberland/court/davis547gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 3.4 Kb