Cummings v. Rice & Nichols

A party signing by tbe initials of bis Christian nnmo may be sued in tho same manner, wiioro the petition was against U. S. Cummings, and tbe citation was issued to and served upon Uriah Cummings, it was held that t-he variance between the petition and writ was immaterial. (Note 01.) Tho filing of an amendment by the plaintiff'on the eve of trial does not entillo tbe defendant to a continuance on tho ground of surprise; but it must bo shown by affidavit that tbe defendant has a good defense, and the filing of tho amendment makes necessary the attendance of witnesses or tho procurement of evidence which was not procured, because not expected to bo needed until after tho ainondmcnt. A waiver by the indorser of snit against tbe maker at the first term of court, which is accepted by (lie indorsee, does not prevont the indorsee from suing the maker and indorsor at the first term. Note 04. — The State v. Manning, 14 T., 402; Galveston & Red River Railway Co. v. Shepherd, 211’., 274; Steen v. The State, 27 T., 80.

Error from Walker. Suit commenced Fall Term, 1852, by the defendants iu error against tbe plaintiffs in error oil a note dated March 5th, 1852, payable one day after date, signed b)' Cummings and alleged to have been indorsed same day to the plaintiffs by Tonsey, the payee. The petition gave the name of one of the defendants as U. S. Cummings. A citation was issued to Uriah S. Cummings, and was returned executed. Cummings excepted to the citation and service, because it did not correspond to the petition. He also filed a general denial. Tonsey demurred generally, and filed a general denial. When the case was called for trial, and after argument of Tousey’s demurrer, the plaintiffs amended by filing the following exhibit, and connecting it with the petition by suitable, averments: “I liave this day transferred, by indorsement to Rice & Nichols, for the. “benefit of William Calhoun, successor of Calhoun & McDnrfee, the following notes,” (including note sued on,) “and guarantee the final payment of the “same, and extend the time until tiie 2d term of court from cíate. “July 12, 1852. Isaac Tonsey.” Thereupon the defendant Tonsey claimed a continuance on the ground of surprise, which was refused by the court, and Tonsey excepted. The exceptions of Cummings and the demurrer of Tonsey were then overruled. Judgment for plaintiffs. Tho errors assigned were : 1st. Overruling exceptions of defendant Cummings. 2cl. Overruling Tousey’s application for a continuance. 3d. Overruling Tonsey’s demurrer. In support of the first assignment of error the court is referred to arts. G71, G74, G75, Hart. Dig., p. 242. Iu support of the second assignment, it is submitted that the amendment sot up entirely new matter, which upon its face presented a new issue, upon which the defendant Tonsey was entitled to time to procuro proof. (Sec Tourtelofc v. Tourtelot, 4 Mass. R., 50G; Homes v. Lansing, 1 Johns. Cas., 248; Watts v. MeKenney, 1 Marsh. Rf, 561 ; Cabanis v. Lyon, 3 J. J. Marsh. R., 332; 4 Litf. R., 335; Rankin v, Coopei',1 Browne -R., 253; Nixon v. Brown, 3 Blackf. R., 504; Wright v. Basye, 6 Blackf., 419 ; 5 Blackf., 84.) In support of the third assignment, the amendment disclosed an agreement to extend the time of suing, and showed that the present snit was premature, or at all events it was sufficiently ambiguous to let in parol proof to explain, which the defendant Tousey should have been allowed time to procure. This cause is taken up for delay. The plaintiffs below had the right to amend their petition by stating that the note was indorsed by Tousey on the 12th July, Í852, instead of on the day the note was made, and also to append to that amendment a memorandum signed by Tousey, showing the actual time of tho transfer. Tills was no ground of surprise to Tousey. The question of his liability would be determined by the facts. He knew what they were. He set up no other defense. The conclusion is, he liad no other. Still less had Cummings any right to be surprised, as lie made the note. The other exception, that the “sheriff’s return did not show what Cummings it was,” it seems, should have come up in another form ; a plea in abatement would have reached1 it, if he had really been a different Cummings.