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KRON v. SMITH.

its would come into the hands of the defendants from their use and occupation. This is apparent from the provision, that upon giving the required security, the defendants were not to be disturbed, but allowed "to keep possession of said property." To avoid a literal interpretation of the terms of the order, and to put it in a form to give effect to the intention of the parties and of the Court, it was eminently proper to correct the order in the manner in which it was done, and thus place the acts charged upon the plaintiffs outside of the sphere of its proposed operation and scope Thus there was no disobedience, and no ground for the further proceedings against the plaintiffs and their associates, and the motion for attachment was necessarily denied. The proceeding was strictly punitory in its object, and if there had been a violation of the words of the order. in their strict sense, it was so obviously not wilful as to bring a disavowal of an intent to disobey within the ruling in Bond v. Bond, 69 N. C., 97.

As the decision was adverse to the application, and the accused parties acquitted of the charge, the costs would ordinarily be made to follow the result. Certainly no cause of complaint can be made when the defendants are adjudged to pay but half of the costs incurred. There is no error, , and this will be certified.

No error.

Affirmed.

ELIZABETH KRON et als. v. M. A. SMITH et al.

Amendment.

1. The distinguishing feature of the practice introduced by The Code, is to have actions tried on their real merits, and avert a failure of justice from some defect that can be remedied by amendment, without prejudice to the other party.

KRON v. SMITH.

2. The Superior Court has the power to allow amendments at any time, either in the allegations of the complaint, or in making new parties, except where the proof establishes a case wholly different from that made in the pleadings, or where the amendment would change the subject matter of the action.

(Henderson v. Graham, 84 N. C., 496; Carpenter v. Huffsteller, 87 N. C., 203; Grant v. Burgwyn, 88 N. C., 95; Gill v. Young, 88 N. C., 58; Robbins v. Harris, at this Term; Reynolds v. Smathers, 87 N. C., 24; Marsh v. Verble, 79 N. C., 19; cited and approved).

MOTION to amend, by making new parties, heard before Avery, Judge, at Spring Term, 1886, of UNION Superior Court.

The present appeal is from another interlocutory order, for amending the pleadings by introducing one Dr. Kron as an associate plaintiff in the action, the record and the facts being the same, except in matters directly pertinent to the appeal, as in the appeal from the refusal of the Court to adjudge him and others in contempt.

The amendment became necessary because there was an outstanding term, of which two months were unexpired when the suit was begun, in the added plaintiff, a fact which seems to have been overlooked at the time, and thus the right of possession was not then in the plaintiff whose lessee the said Dr. Kron had become.

The motion to amend was made at Fall Term, 1884, and was acted on and allowed after the removal of the cause to the Superior Court of Union, on the terms of the payment by the plaintiffs of all the costs incurred up to and inclusive of the term when the motion was made, and their giving bond with sureties in the sum of two hundred dollars for the prosecution of the suit.

From this ruling the defendants appeal.

Messrs. W. P. Bynum and J. J. Vann, for the plaintiffs. Messrs. P. D. Walker and D. A. Covington, for the defend

ants.

KRON v. SMITH.

SMITH, C. J., (after stating the facts). Upon a reference to the pleadings it will be seen that the controversy arises out of conflicting claims of title to the land, the defendant Melissa, (the defendant Dennis being in possession as her tenant of a part of the premises,) claiming for herself and other tenants in common, asserting in them a superior and paramount title to that of the plaintiffs, and hence the subject matter in controversy remains unchanged by the amendment allowed. It falls strictly within the provision of The Code, $273, which declares that the Judge or Court may, before and after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party, &c.

The essential and distinguishing feature of the new practice, is to bring causes to trial upon their merits, and avert a failure for some defect which can be remedied without prejudice to litigants, and is necessary to the prosecution of or the defence to the action.

It may be that amendments are too liberally allowed, and thus encouragement given to carelessness in the preparation. of pleadings, but the exercise of the discretion confided, with its limits, to the Court, is not subject to our review, unless those limits are exceeded.

In regard to parties, the necessity for others often appearing only in the progress and development of the cause, there is greater reason for addition and change, and this is usually permitted, when the essential elements of the dispute remain, and the defence not taken away, against the pending or any new action which the plaintiff, if the amendment were denied, would have to resort to for relief.

The cases on this subject are numerous. A summons may be amended by the clerk affixing his signature; Henderson v. Graham, 84 N. C., 496. No amendment is permitted when the proof establishes a case wholly different from that made in the pleadings; Carpenter v. Huffsteller, 87 N. C., 203;

SMITH V. KRON.

Grant v. Burgwin, 88 N. C., 95; or changing the subject matter of the suit; Gill v. Young, 88 N. C., 58; Robbins v. Harris, at this Term. A change of plaintiffs may be made; Reynolds v. Smathers, 87 N. C., 24; and this was allowed when the plaintiff claimed as assignee and could not prove the assignment, during the trial the assignor becoming a co-plaintiff, the substance of the action being the same. See also Marsh v. Verble, 79 N. C., 19, which case is decisive of the question of power, and, as then, so now, must the right to exercise it be sustained, and the more readily on the terms prescribed. It does not appear that any defences are taken away which could be set up in a new action commenced when the amendment was asked for, and it would be a reproach to the administration of the law, to deny to the Court the authority to allow it.

There is no error, and this opinion will be certified that the cause may proceed in the Court below. No error.

Affirmed.

M. A. SMITH et als. v. ELIZABETH KRON et als.

Evidence-Agency-Infants-Torts.

1. Where a preliminary question of fact arises, upon which the admissibility of evidence depends, the finding of the Judge cannot be reviewed on appeal, if there be any evidence to warrant it.

2. Before the acts and declarations of an alleged agent made and done in the absence of the defendant, the alleged principal, can be received in evidence, the trial Judge must find as a fact, that prima facie evidence of the agency has been offered, and his ruling upon this question of fact is beyond the reviewing power of the appellate Court.

SMITH V. KRON.

3. An infant is liable both civilly and criminally for his torts, and in an action for damages, it is immaterial that the tort was committed by the direction of one having authority over the infant.

4. While infants are incapable of making a contract with an agent either express or implied, so as to bind them for his torts committed in pursuance of the agency; it seems, that an infant is liable for torts committed by his agent in the necessary prosecution of the business of the agency, under the maxim, qui facit per alium, facit per se.

(Kron v. Cagle, 1 Wins., 118; Monroe v. Stutts, 9 Ired., 49: State v. Andrew, Phil.. 205; State v. Davis, 63 N. C., 578; State v. Vann, 82 N. C., 631; State v. Sanders, 84 N. C., 728; State v. Efler, 85 N. C., 585; State v. Burgwyn, 87 N. C., 572; Ellison v. Rix. 85 N. C., 77; State v. Jackson, 82 N. C., 565; State v. Secrest, 80 N. C., 450; State v. Edwards, 79 N. C., 648; State v. Norton, 1 Wins., 296; cited and approved).

CIVIL ACTION, tried before Avery, Judge, and a jury, at May Term, 1886, of UNION Superior Court.

This action, begun on March 6th, 1879, by the plaintiff Melissa Smith, as administratrix of Jane P. Doty, and with leave of the Court, prosecuted in forma pauperis, is prosecuted for the recovery of damages for trespasses committed by the defendants, F. J. Kron, Adelaide Kron and Elizabeth Kron, in the life-time of the intestate, upon a tract of land whereof it is alleged that she, as a tenant in common, was the owner of one fourth part, in mining gold thereon and converting it to their own use.

At Spring Term, 1881, leave was given to make Cordelia Weisenger a party plaintiff, and at Fall Term, 1882, the original plaintiff also became such in her capacity as administratrix of Caroline Adkins.

At Spring Term, 1884, the death of the defendant F. J. Kron being suggested, the action was allowed to abate as to him; and at the second term thereafter, by consent, it was ordered that a copy of the record of the action be removed for trial to the county of Union, in the Superior Court of which, at Spring Term, 1886, it was tried.

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