46 Me. 327 | Me. | 1858
The opinion of the Court was delivered by
It nowhere appears in the bill that the suit was instituted for the benefit of all the creditors, consequently the demurrer must be sustained. Fletcher, Adm’r, v. Holmes, 40 Maine, 364.
As a court of law, sitting in lane, we cannot entertain the motion for an amendment. R. S., c. 77, § 17, gives us jurisdiction at such times over “cases in equity presented on demurrer to the bill; or when prepared for a final hearing.” Amendments can be permitted only at the Nisi Prius terms, and before the plaintiff joins in demurrer, after which we can determine nothing but the issue presented. The case goes back, where the Justice presiding may not, or may, grant the amendment upon terms, or even without terms, as he may deem equitable; provided the plaintiff shall think proper there to renew his motion, and shall have a reasonable confidence and expectation that his bill when amended will be sustainable and his prayer granted, or that the question of jurisdiction will be opened to him after the decision in Caswell v. Caswell, 28 Maine, 235.
Demurrer sustained.
