The plea was properly received. I ground, my opinion upon several cases in Wilson’s Reports, which establish the rule that pleadings may be amended to attain the justice of the case.
Woolford v. Simpson, 3 N.C. 132, 2 Hayw. 132 (1801)
Jan. 1801
·
North Carolina Superior Court
3 N.C. 132, 2 Hayw. 132
Woolford vs. Simpson, Administrator of Wright.
immediately after the death of the intestate, ' J sued his administrator upon a simple contract debt; a specialty creditor also sued, and both writs were returned to the same term. The administrator pleaded to Woolford’s action, plene adminstvarit; and afterwards at a subsequent term, confessed judgment to the specialty creditor for £ 1000, and at a subsequent term, he moved for leave to add the plea .of the *133judgment, and no assets ultra. This was opposed in the county court, and leave was given by the court, and thereupon an appeal taken to this court. And now Haywood argued that the p'ea ought not to be allowed. The addition of a plea is only admissible for the purpose of attaining the justice of the case* which but for the addition would be excluded. It is incumbent then on she mover to shew an equity on the side of the motion, superior to that which opposed it. This the defendant cannot do: the plaintiff is equally a just creditor with himself; and immediately upon the plea of plene administravit pleaded, became entitled to a satisfaction of his demand out of assets, upon the event of that plea being tried and found untrue. Could the court have known that the plea was untrue when pleaded, they would instantly have awarded judgment for the plaintiff; but as they did not know it, time was given to try it: he still howevc r continues entitled to their judgment, if the plea was untrue when pleaded ; and this the contession of judgmentproves. Then what is there to induce this court to take from him the advantage he has gained ? Did he mislead the defendant ? Is it not equally just that the defendant should submit to the inconvenience arising from his own mispleading, as that the plaintiff should lose his demand? A court of equity will r.c/c relieve-against a just creditor on account of the mispleading of executor s 1 Fonb. 147, 1 A'.k. 192. And this proves that the equity of the simple contract creditor is at least equal to that of the executor’s; and consequently the plea ought not to have been received.
Baker, e contra
The reason of the equity cases is, because the executor would not defend himself when he might. The court ia such a case as the present would say to him, why did you not move for leave to amend the pleadings ?