
    WEIKEL & SPOGEN vs. BECKEL.
    Where an affidavit of defense shows that the note grew out of a transaction with a decedent, the record may be amended on the trial by the addition of the title of administrator, and in such case defendants, were not allowed a continuance on the ground of surprise.
    It is not necessary to reswear the jury after such an amendment.
    Error to Common Pleas of Lehigh County, No. 172 July Term, 1874.
    This was a summons in assumpsit brought by Charles N. Beckel against Oliver Weikel and Anton Spogen, partners, trading as Weikel & Spogen, upon the following note :
    
      $309 Bethlehem, Penna., March 15, 1882.
    Ninety days after date we promise to pay to the order of C. N. Beckel, attorney, at the First National Bank of Bethlehem, Three Hundred and Nine 20-100 Dollars, without defalcation, for value received.
    Weikel & Spogen.
    Credit the drawer. Chas. N. Beckel, Atty.
    An affidavit of defense had been filed stating that the note grew out of certain transactions with C. F. Beckel, deceased,' the father of Chas. N. Beckel. After the note had been put in evidence plaintiff moved to amend by adding to the name of the party plaintiff the words “Administrator of C. F. Beckel, deceased.” Defendants object to the amendment, but the objection was overruled. Defendants then plead surprise, and asked for a continuance, but were compelled to proceed. The testimony of Weikel & Spogen was rejected, and there being no evidence to overcome the force of the note the Court directed a verdict for the plaintiff. Weikel & Spogen then took a writ of error complaining of the allowance of the amendment, and the rejection of the testimony of Weikel & Spogen, and they also assigned as error that the jury had not been resworn after the amendment.
    
      Messrs. Henninger & Dewalt and Robert L. Cope, Esqs., for plaintiffs in error,
    argued that the amendment deprived the defendants of a valuable right, i. e., to testify, and should not have been allowed; Kaul vs. Lawrence, 73 Pa., 410; Trego vs. Lewis, 58 Pa., 468; Kille vs. Ege, 82 Pa., 102; Leeds vs Lockwood, 84 Pa., 70; Tyrrill vs. Lamb, 96 Pa., 464. It was necessary to swear the jury over again; Maffitt vs. Rynd, 69 Pa., 380.
    
      R. E. Wright & Sons, contra,
    
    argued that the amendment was merely formal and was properly allowed; Musser vs. Gardner, 66 Pa., 242; Wilson vs. Bank, 45 Pa., 488: Walthour vs. Spangler, 31 Pa., 523; Downey vs. Garard, 24 Pa.52; Barnhill vs. Haigh, 53 Pa., 165. A refusal to grant a continuance is not assignable for error; Maffit vs. Rynd, 69 Pa., 380. Weikel & Spogen were not competent witnesses; Karns vs Tanner, 66 Pa., 297; Ewing vs. Ewing, 96 Pa., 381.
   The Supreme Court affirmed the judgment of the Common Ipieas on March 2d, 1885, in the following opinion:

Per Curiam.

The amendment was properly allowed. The affidavit of defense made by the plaintiffs in error shows they understood the note was executed under circumstances which made the amendment just and proper. The note was payable to the son as attorney, and the plaintiffs well knew who his principal Was. They were therefore not surprised by the amendment. It follows there was no error in the rejection of the witness, and in instructing the jury to return a verdict in favor of the .plaintiff below.

Judgment affirmed.  