Davis v. . Evans
Supreme Court of North Carolina
Cumberland. In this case a declaration had been filed, to which the Defendant demurred specially, and after argument at the spring term of 1812, Locke, Judge, sustained the demurrer, .but gave the Plaintiffs leave to amend on payment of costs.
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Cumberland. In this case a declaration had been filed, to which the Defendant demurred specially, and after argument at the spring term of 1812, Locke, Judge, 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 shew cause why so much of the order as gave the Plaintiffs leave.to amend, should not he 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 Esq. argued the case for…
1Opinion of the Court
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 3 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 3 and by the preceding part of the same act, such defects are cured by not being demurred to. The last part…
2Cited by1 opinion
- Davis v. . EvansSupreme Court of North Carolina · 1814