Lawton v. Swihart

Hanna, J. This was a suit commenced upon three pro- missory notes, previous to the adoption of our new code of procedure, and tried after its adoption. Finding and judgment for the defendant.- The record shows that a bill of exceptions was taken at the May term, 1855, of the Court, for several alleged errors, and among others for refusing to permit the plaintiff, at the August term, 1854, to amend - his declaration. The record does not show that time was given to prepare a bill of exceptions. It was therefore too late to take a bill at the time this was procured and filed. 2 R. S. p. 115.—Mills v. Simmonds, at this term (1). The plaintiff offered in evidence three notes signed “ H. L. Ellsworth, by Henry Swihart.” The evidence was objected to and excluded. This was right, the averment in the declaration was in the usual form, that defendant had “ made his promissory notes,” &c. The evidence offered was the notes of Ellsworth, so far as appears, and did not tend to prove that averment. We do not think he could, under the issues upon which he went to trial, be permitted to prove that the defendant had no authority to make the notes, as agent, and by that means attempt to fasten individual liability upon him. If-he had desired to avail himself of that proof, he should have asked leave to amend his pleadings, and' that would have presented the question whether he ought to have been permitted to make the amendment — a question we do not decide, as it is not before us. R. Brackenridge, jun., for the appellant. J. L. Worden, for the appellee. Per Curiam. — The judgment is affirmed with costs. Worden, J., was absent. Footnotes [(1)] Ante, 464.