Justices of Camden County v. Sawyer's administrator, 9 N.C. 61, 2 Hawks 61 (1822)

June 1822 · Supreme Court of North Carolina

9 N.C. 61, 2 Hawks 61

The Justices of Camden County, Grandy, Plaintiff in fact, v. Sawyer’s administrator.

From Camden.

The act of 1F90, permitting amendments, will not warrant a total change of parties to a suit, except in a case where the parties were merely nominal, and the person concerned in interest, had also been a party from the beginning ; and accordingly an infant for whose benefit a guardian bond had been taken, payable to the Justices, was in a case where his name had been permanently on the docket from the commencement of the suit, as Plaintiff in fact, permitted, on payment of costs, to amend the writ and declaration, which were in the names of such as survived of those who were Justices when the bond was taken, and to declare in his own name as administrator of the last living Justice, named in the bond as an obligee, although the infant had obtained letters of administration after the suit commenced.

Sawyer, the Defendants’ intestate, was one of the securities lo a guardian bond, given by one Michcau, on Ms appointment as guardian to James M. Grandy. The bond bore date, February 5th, 1800, and was made payable “ to Joseph Jones and Stephen Sawyer, Esquires, and the rest of the Justices, assigned to keep the peace for Camden county.” Joseph Jones died in 1800 5 Stephen Sawyer survived him about ten years, and died intestate, and no letters of administration were taken out on his estate, before November, 1821, when James M. Grandy became his administrator.

The writ in this suit issued March 10th, 1818, and described the Plaintiffs as “the Justices of the Court of Pleas and Quarter Sessions of Camden county.” The declaration was made in the names of Joseph Morgan and William Neville, who were the surviving Justices of those duly commissioned, at the time the bond was executed. Before the Jury was impannelled, in the Court below, James M. Grandy moved for leave to amend the pleadings, by declaring, in his own name, as adminis-trafor of Stephen Sawyer j the motion was refused, an# a nonsu^ ordered, whereupon, Grandy appealed.

Taylor, Chief-Justice,

delivered tiie opinion of the Court.

This is an application to amend the writ and declaration, by striking out the names of the parties, and tiie substitution of others, who were not in existence when the suit was brought, and between whom and the original Plaintiffs, iheie is no privity. The very general provisions for amendments, made by the act of 1790, after so many others, on the same subject, had been ineffectually passed, seem designed to overcome the remaining scruples of Courts$ and the act has, general-, ]y, been consi rued in the spirit by which it was dictated. But, comprehensive as the words are, they can scarcely bo thought to warrant a total change of parties, except in a case where the parties were merely nominal, amd tiie person concerned in interest, had also been a party from the beginning, Guardian bonds are directed by the act of 1762, to be taken in trust for the orphan, by the Justices, and this is so taken; and Grandy, the orphan for whose benefit it was taken, has been permanently on the docket, since the institution of the suit, The Justices are parties, merely to satisfy the form of the bond, and arc the instruments to effect a recovery for the benefit of die orphan. No wrong or injury, can then arise to any me, from such an amendment; and it ought to be made an payment of costs.