Gill v. . Young

Smith, C. J., after stating the facts. The finding of the jury, to which wo have adverted, that there was no unwritten trust or agreement attaching to and following the transferred estate in the lot, with the accompanying and sustaining covenant obligation entered into by the grantees, would seem to have effectively disposed of the subject matter of litigation and conclusively to establish the fact that they are only liable to that undertaking to pay off and discharge the debt, as if they were principals therein, as between themselves and Hughes. But, as the cause has progressed beyond that point, and the grantor, Hughes, has perm is- *61 siou to change his relations towards the other defendants and by an amendment make himself a party plaintiff, and set out a cause of action against them (the judgment rendered retiring the original plaintiffs from the cause), it is not only reasonable and proper, but it is the right of these defendants in resisting the claim to set up any and all legal defences that would be open to them if the suit were now commenced; and a ruling which permits the one and refuses the other, is a clear denial of'a right, and not the exercise of a discretionary power residing in the judge and beyond correction. It is in form an amendment, but the starting point of an action wholly different and involving a change of the subject matter of controversy; and if this is admissible, it must be attended with the’consequences of an action then in fact first begun, and remitting the defendants to the same right of defence. Amendments are not allowed when the effect is to deprive the other party of his available defences to a new action. Christmas v. Mitchell, 3 Ired. Eq., 535; Cogdell v. Exum, 69 N. C., 464; Henderson v. Graham, 84 N. C., 496. We do not modify the repeated rulings of this court, that amendments to the pleadings rest in the breast of the presiding judge, and his allowing or refusing them is an exercise of his discretion not reviewable by us. But under the form of amending, when a new cause of action is permitted to be inserted, and the complaint contains matter to which a former was not and could not be responsive, the new defendant cannot be denied his right to put in an answer responsive to the new case made in the complaint, and to set up therein any legal defences that he may possess. The one ruling involves the other. Error. Reversed.