Derry v. Holman

OPINION by Mr. Oi-iiee Justice Sihpson, [621] This was an action on a note brought by the assignee. The answer was a general denial. Plaintiff’s attorney testified that defendant had admitted his liability on the note, both before and after suit brought, and had promised to pay it. Defendant moved for a. [622] non-suit, on the ground that the assignment had not been proved. The judge (Kershaw) refused the motion and charged the jury that if defendant knew of the assignment when he promised to pay — or if the note was then exhibited to him with the assignment endorsed, and he promised to pay — or if, after summons served on him, he promised to pay — then there was an admission by the defendant of the assignment. At the close of the evidence, defendant offered to prove that there was a failure of consideration in the note. The judge ruled that he could not do so under his general denial. Defendant then moved for leave to amend his answer. This was refused, the judge saying: “If you had made this motion at the first calling of the docket, or even this morning, stating the reason why, or indicated that you were disabled, I would have seen my way clear to have indulged it; but now, after the case has gone to the jury, it seems to me on the spur of the moment, I should have no hesitation at all.” On appeal by defendant, this court approved and affirmed the above rulings.