Tomlinson v. Savage, 22 N.C. 68, 2 Dev. & Bat. Eq. 68 (1838)

June 1838 · Supreme Court of North Carolina

22 N.C. 68, 2 Dev. & Bat. Eq. 68

THOMAS TOMLINSON v. CHARLES SAVAGE et. al.

^fter part¡es have been at issue five years, an amendment to the hill will not be permitted which involves the necessity of additional proofs, when the answers’gave the plaintiff notice of the defence which he seeks to avoid.

Upon a prayer for an amendment which amounts to framing a new bill, and takingjnew proofs, the course is to dismiss the pending bill without prejudice.

This was a bill to set aside a sale made under the order of a court of equity, for the purpose of partition. The gravamen of the bill was that the title of the petitioners, at whose instance' the sale had been ordered, had proved defective. In his bill the plaintiff had alleged that one Thomas Blewett had not had issue by his wife, so as to constitute him a tenant of the land by the curtesy. This allegation was admitted by the defendants; but upon’the hearing the plaintiff offered to prove that in fact Blewett had issue by his wife, and was tenant by the curtesy. ..This was objected to, and the objection was sustained. There were other defects in the bill which need not be stated.

Mendenhall, for the plaintiff

read affidavits setting forth the truth of the plaintiff’s case, and moved to remand the cause for the purpose of amending the bill, and taking additional testimony.

Devereux, for the defendants

showed cause against the motion.

Gaston, Judge. —

This case came on for a hearing before us and was fully argued by counsel on both sides. It becoming apparent upon the hearing that the decree of the court would be against the plaintiff, it was prayed on his behalf that the cause might be sent back to the court from which it was removed, in order that the plaintiff might make material amendment in the frame of his bill, and have an opportunity of taking material proofs which it was alleged might be had, and with which the cause was unfurnished. We are disposed to extend every reasonable indulgence to applications which have for their object the more distinct and perfect ascertainment of the merits of a cause, but we think that we should be culpably indulgent if we granted this application., The bill was filed in September, 1832, and contained an averment (which it is now desired to contra diet), that the wife of Thomas Blewett died without having had issue by him. The answer of Thomas and Jane Nor-wood, defendants having a common interest with the plaintiff, was. filed in March, 1833, and this answer apprised the plaintiff of the mistake he. had made in regard to this allegation. After a delay of more than five years in asking' leave to amend the bill, the application now made could not be granted on any terms short of the full payment of the costs. But in truth, to avail the plaintiff, if his remedy be by bill, that before us must be substantially modelled anew, and this can better be done by a new bill, than by any amend-, ment. We will give the plaintiff an opportunity of doing so by permitting him to dismiss the present bill (without prejudice) and beginning de novo; but we can do no more for him. It is unnecessary to examine the other object intended to be accomplished by this motion, the arming of the cause with proofs in which it has been found deficient, as no proofs can help a defective and untrue statement.

The plaintiff has leave to dismiss his bill at his own costs, and file a new bill upon declaring his option to do so on or before the 25th of January next.

Per Curiam. Decree accordingly.