Opinion · Nclaw North Carolina
McCLURE v. BURTON, 4 N.C. 84 (1814)
4 N.C. 84
- Type
- Opinion
- Court
- Nclaw North Carolina
- Jurisdiction
- Nclaw
- Date
- 1814-01-01
- Topic
- general
McCLURE v. BURTON, 4 N.C. 84 (1814) McCLURE v. BURTON ET AL. — 1 L. R., 472.Supreme Court of North Carolina (January Term, 1814.) Where several persons were sued in covenant, two of whom, on oyer had, appeared not to be parties to the deed, the plaintiff was permitted to amend by striking out their names on payment of all costs up to the time of amendment. COVENANT against Richard and James Bullock and others, and upon oyer being prayed and given to the defendants, they pleaded a variance between the writ and the deed declared on, in this, viz., that the defendants Richard and James Bullock were named in the writ, but were not parties to the deed.
Citator
UpLaw has not yet analyzed McCLURE v. BURTON, 4 N.C. 84 (1814). The absence of a flag is not a finding that it is good law.
If the act did not allow an amendment in matter of substance, that part which allows an amendment would be perfectly inoperative; for, as to matters of form, they arecured, and need no amendment. The reasons for this exposition of the act are stated more at large in the opinion of the Court inDavis v. Evans, post, 111. But as the plaintiff must fail in the present action without the interference of the Court, and as the defendants, according to the present construction of the action, would recover costs, the Court, therefore, will not confer a favor on the plaintiff at the expense of defendants.
It is true that if plaintiffs has no cause of action, the defendants cannot be injured by costs; and that if the demand is just, the defendants should pay, or be compelled to pay, with costs. Yet, according to thePage 68present action, the plaintiff hasno demand, and it may be, for aught this Court knows, that upon the allowance of the amendment the defendants may make a tender with a profert — and theymighthave done so at first if they had been charged with a contract theyhad entered into.
Wherefore, we are of opinion that the plaintiff be permitted to amend upon the payment of all costs up to the time of amendment.fn*Cited: Williams v. Lee, post, 578;Grist v. Hodges,14 N.C. 203;Brittain v. Newland,19 N.C. 364;Quiett v. Boon,27 N.C. 11;Lane v.R. R.,50 N.C. 26.
(86)
- HENDERSON and CAMERON, JJ., gave no opinion, being of opposite counsel; but both concurred in the opinion. HALL,hesitante. ↩