Tomlinson v. Savage

Gaston, Judge. —

This case came on for a hearing before us and was fully argued by counsel on both sides. It becoming apparent upon the hearing that the decree of the court would be against the plaintiff, it was prayed on his behalf that the cause might be sent back to the court from which it was removed, in order that the plaintiff might make material amendment in the frame of his bill, and have an opportunity of taking material proofs which it was alleged might be had, and with which the cause was unfurnished. We are disposed to extend every reasonable indulgence to applications which have for their object the more distinct and perfect ascertainment of the merits of a cause, but we think that we should be culpably indulgent if we granted this application., The bill was filed in September, 1832, and contained an averment (which it is now desired to contra diet), that the wife of Thomas Blewett died without having had issue by him. The answer of Thomas and Jane Nor-wood, defendants having a common interest with the plaintiff, was. filed in March, 1833, and this answer apprised the plaintiff of the mistake he. had made in regard to this allegation. After a delay of more than five years in asking' leave to amend the bill, the application now made could not be granted on any terms short of the full payment of the costs. But in truth, to avail the plaintiff, if his remedy be by bill, that before us must be substantially modelled anew, and this can better be done by a new bill, than by any amend-, ment. We will give the plaintiff an opportunity of doing so by permitting him to dismiss the present bill (without prejudice) and beginning de novo; but we can do no more for him. It is unnecessary to examine the other object intended to be accomplished by this motion, the arming of the cause with proofs in which it has been found deficient, as no proofs can help a defective and untrue statement.

The plaintiff has leave to dismiss his bill at his own costs, and file a new bill upon declaring his option to do so on or before the 25th of January next.

Per Curiam. Decree accordingly.