{
  "id": 2090060,
  "name": "WILLIAM H. HALL v. CHARLES E. THORBURN",
  "name_abbreviation": "Hall v. Thorburn",
  "decision_date": "1867-01",
  "docket_number": "",
  "first_page": "158",
  "last_page": "161",
  "citations": [
    {
      "type": "nominative",
      "cite": "1 Phil. 158"
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    {
      "type": "official",
      "cite": "61 N.C. 158"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "1 Dev. 485",
      "category": "reporters:state",
      "reporter": "Dev.",
      "opinion_index": -1
    },
    {
      "cite": "1 Dev., 297",
      "category": "reporters:state",
      "reporter": "Dev.",
      "opinion_index": -1
    },
    {
      "cite": "1 Dev. 397",
      "category": "reporters:state",
      "reporter": "Dev.",
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        8694574
      ],
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      "case_paths": [
        "/nc/12/0397-01"
      ]
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  "last_updated": "2023-07-14T20:18:16.220923+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "WILLIAM H. HALL v. CHARLES E. THORBURN."
    ],
    "opinions": [
      {
        "text": "Battle, J.\nThe 1st section of the 3d chapter of the Rev. Code enacts that \u201c the court, in which any action shall be pending, shall have power to amend any process, pleading or proceeding in such action, either in \u2022 form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered thereon.\u201d The liberality with which the courts have allowed amendments under this provision is well known, and has been' universally approved. It has been forcibly said, \u201c that under it any thing-may be amended at any time.\u201d In the case of Lane v. Seaboard and Roanoke R. R. Co., 5 Jon., 26, it was held that where a person was arrested under a wrong name, the plaintiff might amend the process by inserting the right one. If that be so, surely an amendment ought to be allowed, whether the defendant lias been proceeded against in a name which he used in making the very contract which was the ground of the suit, though it was not his name in full. Nor can it make any difference that the proceeding is by attachment instead of a regular suit. In the case of the State Rank v. Hinton, 1 Dev. 397, after the defendant had filed a plea in abatement, that the plaintiff had failed to give bond and make affidavit, and have them returned to court, to which the plaintiff demurred, he was permitted to withdraw his demurrer, and file, nunc fro tunc, a bond and affidavit which had been respectively given and made, and which the justice of the peace had failed to return. In thin way the fatal defect of the non-return of the bond and .affidavit was remedied, to the manifest furtherance of the justice of the case. In like manner the error (if error it were) of suing the defendant Tliorburn'in the name of C. E Thor-burn instead of Charles E. Thorburu, was properly permitted to be cured in the court below by the amendment which was there allowed.\nThe decision of the question of amendment in favor of the plaintiff precludes the necessity of saying any thing about tbe plea in abatement for misnomer, which the defendant proposed to file. The interlocutory order made in the Superior Court is affirmed.\nPer Curiam. Order affirmed.",
        "type": "majority",
        "author": "Battle, J."
      }
    ],
    "attorneys": [
      "Strange, for the plaintiff.",
      "W. A. Wright for the defendant."
    ],
    "corrections": "",
    "head_matter": "WILLIAM H. HALL v. CHARLES E. THORBURN.\nWhere the affidavit and process in a case of original attachment described a defendant as \u201cC. E. Thorbum,\u201d his name in full being \u201cCharles E. Thorbum,\u201d held, that the court below might, at any time before final judgment, allow the plaintiff to amend the proceedings by substituting the latter name for the former.\nThe note upon which the suit had been brought being signed \u201c C. E. Thor-bum,\u201d quoi-e whether the amendment was necessary.\n(Lane v. R. R. Company, 5 Jon., 36; State Bank v. Hinton, 1 Dev., 297, cited and approved.)\nAmendment of an original attachment, allowed before his Honor, Merrimon, J., at Fall Term, 1866, of the Superior Court of New-Hanover.\nThe note, which was the foundation of the attachment, was signed by one \u201c C. E. Thorburn,\u201d and the description of the defendant in the affidavit and process was the same. At Fall Term, 1866, (the second term,) the counsel for the plaintiff moved to amend the proceedings by substituting for the above name, that of \u201c Charles E. Thorburn,\u201d which the defendant objected to, and offered to file a plea in abatement for misnomer.\nThe court having allowed the amendment, the defendant appealed.\nStrange, for the plaintiff.\nW. A. Wright for the defendant.\nThe affidavit in the case was framed in violation of that rule of pleading which prescribes, that pleadings must specify and set forth accurately the Christian name and the surname of both parties: Com. Dig. Abatement E. 18, E. 19; Stephen PL, 302. Charles Edward Thorburn, who owns the property that was attached here, has a right, upon replevying, to object to the process by which his property was brought into court. A writ served on \u201c John\u201d by the name of \u201c James \u201d is not cured by declaring against the party by his true name, and the court will set it aside. Doe v. Butcher, 3 T. R., 611; Greenlee v Bothesay, 2 New. Rep., 132.\nThe court had no power to substitute a new affidavit, or to amend one already made. If there be no affidavit made, or none that sets forth the facts necessary to the jurisdiction of the court, the proceedings are coram non juclice. The court cannot confer jurisdiction upon itself by amendment; for necessarily jurisdiction must precede amendment. Our statute upon attachment makes no provision for amendment of affidavits in such cases, although this is done in other States. Here, the affidavit is a condition precedent; State Bank v. Hinton, 1 Dev. 485. An amendment 'would be to evade the statute, which no court can do; Phillipse v. Hig den, Bus. 391. The distinction between the principle of the amendment in State Bank v. Hinton, and that of the one asked for here, is vital."
  },
  "file_name": "0158-01",
  "first_page_order": 166,
  "last_page_order": 169
}