Hodges v. Holland , 33 Mass. 395 ( 1835 )

Per Curiam.

The note in question was due from the intestate, and it was competent evidence to support a general count for money had and received ; but the defendant objects that it ought not to have been received in evidence, because when the action was brought the plaintiffs did not intend to include it in their writ. It is proper to remark, that there were no subsequent attachments by other creditors of the intestate ; and it is therefore unnecessary to consider whether the claims of such creditors would have had any effect on the question before us. We shall take it to have been proved, that the plaintiffs intended, at the time, to sue only upon the note for 6000 dollars ; and we are then to decide whether they could avail themselves of the note for 1809 dollars. This note was only evidence; and the question then is, whether a plaintiff is obliged, when he commences an action, to determine upon what evidence he will rely. Clearly he is not. Any proper evidence, whether discovered before or after suit brought, is admissible. Further, suppose the suit had been commenced by the attorney, upon a good cause of action, without any application on the part of the plaintiffs, it might be subsequently authorized by them, and then it would stand in the same condition as if there had been a previous authority. Now here the attorney stated that he inserted the general count for greater caution, and for the purpose of comprehending any demands which the plaintiffs might have against the intestate, besides the note described in the first count, and the plaintiffs have ratified his doings. We are of opinion, therefore, on these grounds, that the plaintiffs had a right to offer the smaller note in support of the money count, and judgment must be entered on the verdict.