The act of 1790 permitting amendment 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.
TAYLOR, C. J.
This is an application to amend the writ and declaration by striking out the names of the parties and the substitution of others who were not in existence when the suit was brought, and between whom and the original plaintiffs there 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 generally been construed in the spirit by which it was dictated. But comprehensive as the words are, they can scarcely be thought to warrant a total change of parties, except in a case where the parties were merely nominal, and the 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 are the instruments to effect a recovery for the benefit of the orphan. No wrong or injury can then arise to any one from such an amendment, and it ought to be made on payment of costs.
PER CURIAM. Reversed.
Cited: Grist v. Hodges, 14 N.C. 203; Green v. Deberry, 24 N.C. 345; Quiett v. Boon, 27 N.C. 11; Lane v. R. R., 50 N.C. 26.
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