Williams v. Lee's Heirs, 4 N.C. 146, 1 Taylor 146 (1817)

July 1817 · Supreme Court of North Carolina
4 N.C. 146, 1 Taylor 146
WILLIAMS against LEE'S HEIRS

WILLIAMS against LEE’S HEIRS.

ae^iistheirs may be amen-dedafter the plea oí' mil iiel record pleaded.

THIS was a scire facias against heirs, upen a judgment recovered before a magistrate against the administratori wherein He had proved a full administration. The constable levied upon land, and returned the nrocecd- . * 1 . mgs to the County Court, whence this scire facias issued j but instead of reciting the judgment, it recited an execution for the same sum the judgment was recovered for. The cause was tried in the County Court, on the plea of nul tiel record, and on an apjjeal to the Supeiior Court, it came on to be tried before Dastisl, J. who, upon motion, allowed the scire facias to be amended bv reciting the judgment, and the Defendants to withdraw their plea, which they refused to do. The cause was then tried and a judgment rendered for the Plaintiff; from which the Defendant appealed to this Court.

The questions submitted are, Was the amendment properly allowed r If it was, Ought not the Plaintiff to have been taxed with costs ?

Taylor^ C. J.

Several decisions have taken place utider the act of 1790, c. 3, § 9, allowing amendments in a greater latitude than the present application. In the Case of Davis v. Evans, * the declaration was amended after the allowance of a special demurrer. In M'Clure v. Burton and others, decided at the same Term, the names of two Defendants, inserted in the writ but not parties to the deed declared on, were permitted to be struck out, after the variance was pleaded. The act goes further than any of the British statutes; and the construction agreed upon by the Court and which they still think the proper one, is, that any thing may be amended at any time. This is expressly authorised by the best sentence of the act. The amendment was properly allowed in this case, hut the Plaintiff must pay the costs, up to the time when the order was made.

The other Judges concurred.†