Watkins v. Canterberry , 4 Port. 415 ( 1837 )

COLLIER, J.

— 'The defendant in error sued out a writ of capias ad respondendum against the plaintiff, and declared against him, by the name of Barnabas R. Watson. The note offered to the jury, under the general issue was signed B. R. Watkins.— To its introduction the plaintiff objected — whereupon, on the application of defendant’s counsel, the Court allowed “Watson” to be stricken out, and “Watkins,” inserted, and then suffered the note to be read to the jury. The Court also charged the jury, that it was not necessary for the defendant to prove a consideration for the note — its terms imported a sufficient one, in the absence of proof impeaching it. To all which the plaintiff excepted; and now assigns them for error.

If an application had been made to the Court to amend the declaration at the proper time, it should have been granted, so as to make it correspond with the writ; but an amendment (at least in a material part of the pleadings,) is not allowable after an issue has been submitted to the jury. By such an amendment, a different case is made than the parties assent to try. To have authorised a recovery in this case, in the condition the pleadings were when the issue was submitted to the jury, it was necessary to prove a liability against “ Waison,” — as amended, “Watkins” was to be charged. The plaintiff may have been ready to try the first, and not the last issue. Had the declaration disclosed a demand against him, he might have continued, for the absence of some material witness; but not being able to foresee the change made in the pleadings, he felt himself prepared for trial. In fact, he could not with propriety say that a witness who was material on the trial of an issue involving the liability of “ Watkins,” was alike essential to the defence of “ Watson.” The amendment then was unauthorised, as varying the proof in favor of a recovery, and of consequence, the evidence in the defence; and not depending upon a discretionary exercise of judgment for its justification, is revisable on error.^*

The note is for the payment of cotton at an agreed time, “for value received;” and by our statute, is placed upon the same footing with a note for the payment of money. The decision of the Court, that the note imported in itself a consideration, was proper; and such has been the decision of this Court. See McMahon vs. Crockett.^†

Upon the first ground, the judgment must be reversed, and the cause remanded.

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