Dallam v. Bowman

Scott, Judge, delivered the opinion of the court. It is not the purpose of the court to give any judgment on the merits of the present controversy, as we are of the opinion [226] that they are not properly before us. Our views of this subject are now given, tbat the plaintiff may not be delayed, if he. should see proper to renew this suit. We are of opinion,that the facts proposed to be proved were admissible, -under a suitable state of pleadings. The petition of the plaintiff did not contain matter sufficient to admit many of the facts sought to be proved, and it is obvious that the merits of this suit cannot be properly investigated, without additional averments in the plaintiff’s-statement of his cause of action. It is clear that a sheriff’s sale, under execution, may be shown to be collusive' or fraudulent, and that there was a secret reservation of a trust in favor of the defendant, with the consent of the purchaser. But there was no foundation in the pleading for such evidence. The plaintiff submitted to a non-suit, on the refusal of the court below, to permit him to amend his petition. 2. The matter of permitting amendments is so much in the discretion of the court, who tries the cause, that this court has always expressed its aversion to interfering with the judgments of the inferior courts, in relation to such matters. Courts of original jurisdiction should be liberal in the allowance of amendments in furtherance of justice. The late code calls for the liberal exercise of this power, and furnishes ample authority in support of it. The court is unanimous in the opinion, that the judgment should be affirmed.