
    Beal’s Adm’r v. Alexander.
    Where the instmrpent fined on is made a part of the petition, the court will sire it the legal effect to which it i's entitled, notwithstanding it may have been misconceived by the pleader, and will sustain the petition if it be intelligible and consistent, and if enough be stated to show a cause of action.
    A new cause ol action cannot be set up hy way of amendment of the petition.
    Where the petition consisted of several counts, with the instrument sued on annexed as a part of it: Held, That the court did not err in striking out all except the exhibit and the hrsfc count, which described the cause of action properly.
    
      Quere as to what will be sufiieicMit averment of notice to a prior indorser on special exception. iSotice from the holder, or any one liable upon the note or bill, is sufficient to bind a prior in-dorser; “so* if the holder or any other party give notice but to the person w ho is his immediate indorser on the note, yob, if notice be communicated by the latter without laches to the prior parties, the holder may avail himself of such communication of nonce.”
    It is not necessary to aver notice to tho maker or drawer in order to hold an indorser.
    In a suit by an indorsee against an indorser it is not necessary to aver or prove the competency of the maker or drawer to make the note or draw tho bill.
    The act of 1840, to dispense with the neoe^sit}' of protesting negotiable instruments, <fro., did not apply to cases in which the liabilities of the parties had'bcen already fixed agreeably to the principles of mercantile law.
    It is too late to withdraw interrogatories which have been propounded to tho opposite party after they have been answered; but where the defendant’s answers were not among the papers of the cause, but were in the possession of his attorney, although marked ‘'filed,” and the defendant’s attorney was in court and resisted the application for leave to withdraw the interrogatories, but not on the ground that they had been answered, making no allusion to the answers, and it did nob appear that the plaimiif or his attorney knew they - had been filed: Held, That there was no orror in permitting the interrogatories to be withdrawn.
    A paper is to be deemed to have been filed only when it shall have been delivered into the custody of the clerk, to be by him kept among tho papers of the cause, subject to the inspection of tho parties. If a party cause the clerk to indorse a paper filed, and immediately withdraw it from the custody of the clerk, and from the inspection of the opposite party and the court, (he paper will not be considered as having been filed in contemplation of law. (iSota 90.)
    If a party who would claim rights arising upon a paper or pleading in the cause stand silently uy, and permit the court to take action which assumes the non-existonce of such paper or pleading, and do not bring it to the notice of the court, he will not be heard first m the appellate court to object that the proceedings were, in that respect, erroneous.
    Error from Sabine. Tbe plaintiff in error as indorsee sued the defendant in error as indorser upon a promissory note as follows:
    “$3328 2S-100. Grenada, Miss., 10ih October, 1838.
    “The Bank of Grenada, Mississippi, will pay to the order of James Sims, esq., six months after date, with interest, after the first day of next month. November, at the counting-house of IV. M. Beal, in the city of New Orleans, Louisiana, negotiable at. any bank in the United States, three thousand five hundred and twenty-eight dollars twenty-eight cents, for value received.
    “C. J. Wharton, Cashier. F. E. Plummer, President."
    
    The original- petition, filed on the 22d day of February, 1841, described the note as having been drawn by “F. E. Plummer, President,” on tho Bank of Grenada, &c., and alleged that it was indorsed by the defendant, protested for non-payment at the request of one Chew, as cashier and holder, for the New Orleans Canal and Banking Company, “and the parties to the said draft, order, or note duly notified of the protest thereof; ” that the plaintiff, as the last indorser, in consequence of his liability so incurred, took up tlie note and was the holder and owner thereof; and that the defendant, “being a prim-indorser, and having had doe notice of the protest ox said described instrument for non-payment, is liable to pay to your petitioner said above-described sum of money, with interest,” &e. It also exhibited the note sued on, which was filed with and made a part, of the petition. On the, 25th of November, 1S-1-I-, (lie plaintiff filed an amended petition, in which he alleged I hat “ the Bank of Grenada never was situated within the limits of the Republic of Texas;” that the said F. E. Plnmmei-, President, resided beyond the limits of the Repnblie,” &e.; and that, “said instrument was duly protested for non-payment, of which tin* said Caleb P. Alexander had notice.”
    
      At the Spring Term, 1S45, the defendant answered by a demurrer, a general denial, and special matters of defense to the merits. lie propounded interrogatories to the plaintiff touching the truth of the matters averred in his answer. The defendant subsequently, at the same term, withdrew his demurrer, and the cause was continued, with leave to the parties to amend.
    At the Spring Term, 1846, the plaintiff filed a second amended petition, containing a description of three distinct causes of action. The petition first described the note sued on as the promissory note of the Bank of Grenada, made by its officers, the president and cashier. It set out the note in substance as it appeared as an exhibit to the original petition. It alleged that the payee indorsed the note to the defendant, who indorsed it to F. E. Plummer, who indorsed it to the plaintiff, by whom it was indorsed to the New Orleans Canal and Banking Company; that at maturity the note was presented at the place appointed for payment, and payment thereof refused, “of which said several premises the said defendant had due notice;” that after the protest of the note for non-payment he, the plaintiff, discharged his liability incurred by liis indorsement by paying to the New Orleans Canal and Banking Company the contents of the note, tiy reason of which payment the said note was returned to the plaintiff, and that the defendant thereby became liable to the plaintiff upon and promised to pay him the contents of the note. The petition then proceeded to describe the note, or one for the same amount, of the same date, and due at the same time, as a bill of exchange drawn by the defendant upon the Bank of Grenada, payable t.o the plaintiff. The petition added, in form, a common-law count for money paid by the defendant for the plaintiff', at his request, on the 1st. day of January, 1840. It contained the further averments that the Bank of Grenada was a foreign corporation, without the limits of the Republic, and that Sims, the first indorser, was also a non-resident.
    At tlie Fall Term, 1847, the defendant moved the court to reject the amended petition, and at the same time made application for permission to amend his answer by withdrawing the interrogatories by him propounded to the plaintiff. The parties appearing, the court entertained the application, and gave leave, to malee the desired amendment, “subject to whatever exception may legally be taken.” On the next day a paper ivas filed by the plaintiff, signed by bis counsel, containing exceptions to the order of the court permitting the amendment of the answer. No action of the court was taken upon the exceptions, nor were they otherwise brought to the notice of the court or the adverse party. The transcript contained what purported to be the answer of the plaintiff to the interrogatories propounded by the defendant, marked “filed May 25th, 1847.” It was agreed by the parties, by a statement (¡led by them in this court, that when the motion for leave to amend ivas íicted on-by the court tlie papers of the cause were examined, and there were then no answers of the plaintiff to the interrogatories among them; that the attorney of the plaintiff' was present in court, and resisted the application for leave to amend, but. not upon the ground that the interrogatories liad been answered by the plaintiff, and that lie did not inform the court that the answers had been filed or were in Ids possession.
    At the Spring Term, 1848. the plaintiff further amended his petition, alleging that the Bank of Grenada was situated in the State of Mississippi. The defendant subsequently filed a general demurrer to the original and amended petition, and a plea of Uni statute of limitations. The cause coming- on for trial at the Spring Term, 1840, the court, on the motion of the defendant, struck out the last two counts in the amended petition, sustained the demurrer to the original and amended petition, and gave judgment thereon final in favor of the defendant. The pluiniiff brought a writ of error.
    The deatli of the plaintiff in error was suggested in this court, and his legal representatives made parties.
    
      T. J. Jennings, for plaintiff hi error.
    I. There was error in permitting the defendant to amend by withdrawing the interrogatories after they had been answered. (5 Mart. B.., 592; BN. S., 179.)
    II. We cannot but regard the next error assigned, “ the striking ont of the two last counts of the plaintiff’s petition,” as equally Obvious.
    III. But the District Court not only struck out a portion of plaintiff’s petition, but sustained a general demurrer to the part stricken out as well as all (he rest of the petition, and in doing so we think it erred. It is to be observed that the special demurrer once filed by defendant was by himself deliberately withdrawn. The instrument sued on is a promissory note; was tiled with and made a part of the petition; the defendant was an "indorser, thereby guaranteeing its validity, &c., and the liability Of the defendant -was fixed, according to the mercantile law, before the passage of our act of 1840. The form of the petition is from Chitty, and although’it may contain more than is required under our system it certainly does npt contain less.
    IV.- It is not, deemed necessary to argue the point made hy the defense under the statute of limitations.
    
      J. P. Henderson, for defendant in error.
    I. Tfierc was no error in permitting the defendant to withdraw his interrogatories under the circumstances stated in the agreement filed in this court.
    II. That the motion to strike ont a portion of the petition was properly sustained, is so clear that little need be said in answer to that assignment. The motion did not extend to that part of the petition which treated the instrument sued on as a promissory note.
    III. There was no error in sustaining the demurrer to the petition. Those parts of the petition which treated the instrument as a bill of exchauge did not aver a presentment of the bill at the bank of Grenada for acceptance nor for payment, nor was there any averment of notice to the maker or any [586] person prior to the defendant, nor was there any allegation that Beal had notice. If there was not due notice to Beal lie was, discharged, and if he paid the bill he did so voluntarily, and cannot recover as an imlorsei who ivas compelled to take it up. (1 Suppl. U. S. Dig., p. 298, sec. 245; Story on Prom. Rotes, secs. 200 to.202; 1 U. S. Dig., p. 423, sec. 110; Id., p. 424, seo. 114.)
    The demurrer was properly sustained to the only count in the petition which treats and describes the instrument as a promissory note—
    1st. Because it is not alleged that the maker and those who indorsed the note prior to the defendant were notified of its non-payment, &c.; nor is it aileged that the plaintiff Beal liad such notice given to him so as to charge him as an indorser. If he paid the note the payment was voluntary, and lie cannot recover as ail indorser who was forced to take up the note after protest.
    2d. The plaintiff does not allege that the note was protested for non-payment, nor is it sufficiently alleged that it ivas presented for payment at the place where it was expressly made pa] able. (See authorities above cited.)
    3d. It is not alleged that the bank of Grenada had any power or authority to execute a note. If the defendant was liable at all upon his indorsement of a "void note it would seem that it would not be upon ¡he note itself, hut in an action for money had and received from plaintiff; and so the petition shows that the claim was barred by the statute of limitations.
    4th. The petition does not show that the plaintiff has used proper diligence io collect the note.
   AVhebler, J.

The assignment of errors seeks a revision of the ruling and judgment of the court—

lsf, in permitting the defendant to amend his answer by withdrawing the interrogatories by him propounded to the plaintiff, and, second, in striking out the last two counts in the amended petition, and thereupon sustaining the demurrer to tlie original and amended petition.

The' judgment oE tlie court upon the legal sufficiency oí tlie petition may first be considered; and should it then become materia], the other question may be, disposed oí.

1. Bid tlie court err in its judgment respecting the legal sufficiency of the petition?

The instrument set out in the original petition is evidently a promissory note. In framing the petition the pleader seems to have misconceived its import, but lie exhibits the instrument to the court and makes it a part of his petition. Being thus made a part of the petition, tlie court will give the instrument the legal effect to which it is entitled, notwithstanding it may have been misconceived by tlie pleader, if the pleading he intelligible and consistent and enough be stated to show a cause of action.

In respect to the propriety of the ruling in st riking out a part of the amended petition, it is material Lo observe that the suit was brought on the 22d day of February, 1844, upon a promissory note set out in the petition, and which constituted the solo and entire cause of action. Tlie amended petition, filed at tlie Spring Term, 1846, introduces two new and distinct causes of action: one upon a Bill of exchange not set out literally, hut described as having been drawn by the defendant in error in favor of the plaintiff, dated on the 10th day of October, 1838, and due six months after date; the other for money paid by the plaintiff for the defendant at his request oil the 1st day of January, 1S40. Regarded as new, distinct, and independent causes of action, and they arc so treated by the averments of tlie petition and must be so taken in considering the demurrer, they could not be joined or introduced into the case by amendment, but, if intended to have been sued on, should have been joined in the original petition. Moreover, they clearly were barred by the statute of limitations before the filing of tlie amended petition, whicli as to these canses of action was an original petition.

But if, as is probable, these statements in the amended petition were intended as but different forms of stating the samo cause of action iu imitation of the different counts in’a common-law declaration, they are inappropriate hero and cannot be maintained, being repugnant to and inconsistent with tlie facts which are shown to constitute tlie real cause of action. They do not slate tiie facts of the plaintiff’s case as they are shown by his original and so much of Iiis amended petition as correctly describes the instrument sued on. They do not and cannot bo made to consist with tlie real canse of action upon which tlie plaintiff must rely in order to maintain ids case. They are too evident a departure from the rules of correct pleading in onr law of procedure to require further comment. Regarded either as' new and independent causes of action or as different forms of stating tlie same cause of action, tlie two ‘'counts” stricken out cannot be maintained, and the court did not err iu rejecting them.

The original petition and the amendments, which arc consistent with its statement of the cause of action, must be taken together as a whole, and upon demurrer tlie question is, Does tlie petition contain appropriate averments sufficient, if true, to entitle the plaintiff to recover?

It does not appear upon what ground the court sustained the demurrer to the original and amended petition, but it is insisted for the defendant in error that it was rightly sustained, and that the petition is defective—

1st. In that it is not sufficiently averred therein that the maker and those who indorsed the note prior to the defendant liad notice of its dishonor, or that the plaintiff had such notice as to render him responsible as indorser, to

Tlie original and first and second amended petitions respectively contain aver-ments of notice; and though the fact of notice to the defendant is not Stated in ? manner as direct, positive j and definite as would be desirable, we think it mist he lield sufficient on general demurrer. If there had been special exception to the petition for this cause, so as to have apprised the plaintiff i-what respect he ought to amend, and he had declined to do so, it might have been proper to apply to the petition in this respect severer scrutiny and a more rigid rule.

Notice from the person entitled at the time to call for payment or rpimbnrsement is now held to be sufficient, although it is said formerly to have been otherwise. (Story ‘on Promissory Notes, see. 302.) “Hence (says Story) a notice from the holder or any other party will inure to the benefit of every other party who stands between the person giving (.lie nolice and the person to whom it is given. Therefore a notice from the last indorsee to the first indorser will operate as a notice from each of the intermediate indorsers. So if the holder or any other party give notice but to the person who is his immediate indorser on the note, yet if no notice be communicated by the latter wiliiout laches to the prior parties, the holder may avail himself of such communication of notice and sue any such prior parties; for it is not necessary that notice should come immediately from the holder, since it does come from one who is liable Co pay the note and is entitled to reimbursement from such prior parties.” (fb.)

It was not necessary to aver notice to the maker of the note. In the case of bills and notes, “the indorser to whom notice is duly given is liable, although nolice be not given by the holder to the drawer ora prior indorser.” (3 Kent, 104, 105.) Bul-

id. It is further insisted that the petition is insufficient, in that it does not contain an averment that the bank of Grenada had authority or capacity to make the note in question.

• This is a question which it is conceived the defendant cannot require the plaintiff to discuss with him in this action. By his indorsement of the note to the plaintiff he has contracted that the bank of Grenada was competent to make the note, and lie cannot be heard to question its competency in this case.

“The indorsement of anote (says Story) in contemplation of law amounts to a contract on the part of the indorser with and in favor of the indorsee and every subsequent holder to whom the note is transferred — (1) that the instrument itself and the antecedent signatures thereon are genuine; (2) that lie, (the indorser) lias a good title to the instrument; (3) that he is competent to bind himself as indorser; (4) that the maker is competent to bind himself to the payment, and will, upon due presentment of the note, pay it at maturity, or when it is due; (5) that if when duly presented it is not paid by the maker, lie (the indorser) will, upon due and reasonable notice given him of the dishonor, pay the same to the indorsee or oilier holder.” (Story on Promissory Notes, see. 135; 3 Kent. Comm., 89; 1 Hill N. Y. R., 287 ; 4 Mass. R., 45.) .

3d. Finally, it is insisted that the act of 1840 “to dispense with the necessity of protesting negotiable instruments,” &c., (Hart. Dig., p. 771,) is applicable to this ease, and that the defendant is discharged from liability by the omission of Hie plaint iff to bring suit as directed by the first section of that act.

The liability of the defendant in this case ivas fixed before the passage of the act in question. That act was not, we think, intended to retrospect so as to require suit to be brought in order to charge parties whose liability had been fixed agreeably to the principles of mercantile law prior to its passage; consequently it lias no application to the present case.

It is not perceived that there is any fatal defect in the petition, or that there was good cause for sustaining the demurrer to the original and amended petition, in so far as the former sets out the note sued on and the latter describes it correctly with appropriate averments; and we are of opinion that the court erred in sustaining the demurrer.

2. In reference to the future conduct of the cause it therefore becomes material to revise the decision of the. court in permitting the defendant to amend his answer by withdrawing the interrogatories propounded by him to ‘he plaintiff.

Note 90.—See Hammock v. May, 38 T., 196.

It is admitted that if the answers of the plaintiff to the interrogatories propounded to him by the defendant were in and before the court tiie defendant could not evade their effect or deprive the plaintiff of any benefit lie might derive from them by withdrawing his interrogatories. If the answers wore properly in, it was too late for the defendant to amend in that particular. The answers appear to have been marked “ tiled ” previous to the action of tiie court permitting the amendment; but it is agreed that they were not then in court among the papers of the cause, and in effect that the fact of their existence was not made known to the opposite party or the court when its action was taken. They cannot therefore bo regarded as having been properly on iilo in the. cause.

In our practice a paper is to be deemed to have been filed only when it shall have been delivered into the custody of (he clerk, to be by him kept among the papers of the cause, subject to the inspection of tiie parties. I£-a, party causes, the clerk to mark upon a paper “ filed,” but afterwards withdraws it from tiie custody of the clerk and from the inspection of the opposite party and the court, the paper will not be considered as having been filed in contemplation of law. While it is so withdrawn, the fact of its existence need not he noticed by tiu* court or the adverse party, and such proceedings may lawfully be taken as if in fact it had no existence. And if the party who would claim rights arising upon a paper or pleading in the cause, (lie existence of which as a paper or pleading in that cansé is peculiarly within his knowledge, stands silently by and permits the court to take action which assumes the non-existence of such paper, and does not bring it to the notice of ihc court, lie will not be beard first in the appellate court to object that the action of tiie court was in that respect erroneous. This point was so decided in the ease of Hopkins v. Donalio, (4 Tex. R., 336.)

The agreement of the parties in this ease excludes the supposition that the answers of the plaintiff to the interrogatories were in court., among tiie papers of the case, when the action of the court now in question was taken. But if they were in court they were not brought to the attention of the court by the attorney who then represented the plaintiff in Unit court, and who, it is agreed, was'in court and cognizant of tiie action taken in the case. Under the circumstances, we arc of opinion that the court did not err in permitting the plaintiff to amend his answer by withdrawing tiie interrogatories by him propounded to the plaintiff.

But because the court erred in sustaining tiie demurrer to tiie origin’al and amended petition, we are of opinion that the judgment be reversed, and the cause remanded for further proceedings.

Judgment reversed.  