Walthour v. Spangler

The opinion of the court was delivered by

Lowrie, C. J.

In strict law this is a covenant with- Samuel Spangler, and it was a mistake to declare on it as a covenant with Joseph, though, on the face of it, Samuel professes to be acting as agent for his son Joseph; and we think that the law authorizes the correction of such a mistake, by substituting the name of the true legal plaintiff indicated by the agreement declared on.

The refusal of the court to continue the cause, on allowing the correction, is not reviewable here. No doubt, the court would have granted a continuance, if the party had made an affidavit that he was taken by surprise, so as to be forced upon a defence for which he was unprepared. Yet,- a party ought always to be prepared for a candid defence against what is manifestly the cause of action, and for any amendment that is necessary for its proper presentation.

The exceptions to the evidence cannot prevail, because the letter of 19th November 1852 would have proved nothing, if it had been admitted.

Judgment affirmed.