Barnes v. . Dickinson

16 N.C. 326

• Court: Supreme Court of North Carolina
• Decided: June 5, 1829
• Status: Published

Opinion

Henderson, Chief-Justice.

— This is a bill of review for error in fact in a former decree, made in this Court. Waiving every other objection, I think that the bill cannot be sustained, because it appears in the bill itself, that the error, or rather the cause of complaint, w as known to the Plaintiff, at the return term of the original bill, time enough for him to have availed himself of it in that suit. For if the bill did not embrace it, it might have been amended ; or it' that could not have been done, it might have been brought before She Court by supplemental bill. The necessity, under which the Plaintiff says ho was placed, of abandoning his injunction, if iie amended his bill, (if in fact it did exist,) would have been obviated by a supplemental bill, leaving the injunction to be sus - tained, if it could by the original. 1 fear that the common idea, that an injunction is given up by an amendment, is carried too far; it is going sufficiently far to say, that an injunction cannot he sustained or propped by an amendment.

Per Curiam.

— Let the decree of the Court below be affirmed.