1 Ind. 17 | Ind. | 1848
Assumpsit by Jones against Taylor, William Hendry, John Hendry, Smith, Youmans, and Justice. The first count of the declaration is upon a promissory note
It appears from the evidence, which is all set out in the record, that, in the winter of 1839, Samuel Taylor and one Moses Hendry went to Coles county, Illinois, to purchase hogs. They bought hogs of the plaintiff and several other persons, the said Taylor executing notes for the payment, one of them being that now sued upon. Taylor, himself, signed all the names to the notes. In August, 1840, Benjamin F. Jones, a witness upon the trial in the Circuit Court, with his brother Williani R. Jones, went to Roseville, Parke county, in this state, to see the defendants and endeavor to collect from them the amount of the note described in the declaration, and also the amounts of several other notes of the same kind due to the witness and other persons of whom hogs had been purchased. The witness there saw Taylor, William Hendry, Youmans, and Justice, who made no objection to the validity of the notes, but being unable to pay the sum due for all of them then in possession of the witness, they procured 400 dollars which they paid to him. No part of this sum had been paid to the plaintiff, and the witness stated that no part of it had yet been specifically applied upon either of the said notes. •
The plaintiff having failed to prove any acknowledgment on the part of Smith and John Hendry of their liability upon the note in suit, then, by leave of the Court, amended the writ and pleadings by striking out the names of those persons, and offered the note in evidence except the names of the said Smith and John Hendry appearing thereto. The note was permitted to be so given in evidence, notwithstanding the objection of the defendants.
The bill of exceptions states that when the witness,
The R. S. c. 40, s. 98, authorize the plaintiff, during the progress of a trial, to amend his writ and pleadings by striking out the names of one or more defendants when there are several. The defendants contend that this section was intended to'apply only to actions ex delicto, but as the provision in terms embraces all actions, we can perceive no good reason for so limiting its meaning.
Such an amendment, at the time and in the manner it was made in this case, does not entitle the adverse party to a continuance under the statutory provisions. R. S. c. 40, ss. 231, 232. — M'Kinney v. Harter, 7 Blackf. 385. — Saxton v. The State, 8 id. 200. — Roberts v. Ward, id. 333.
We think there was no error in permitting the note to be given in evidence under the circumstances disclosed. Smith and John Hendry having denied the execution of the note under oath, and there being no proof that Taylor was authorized to affix their signatures to it, it must be concluded that those signatures were made without authority and amount to nothing. The note must be regarded as having been made by the persons who authorized their names to be signed to it, and the fact that other names were written under theirs without authority ought not to prevent a recovery against them. Such names may be rejected as surplusage.
The defendants also contend that, upon their request, the Court should have directed the 400 dollars paid to the witness, B. F. Jones, or at least a portion of that sum, to
— The judgment is affirmed with costs.