
    Henderson v. Hamer et al.
    
    Where a plea is filed in the name of all the defendants, it will he an appearance for all, whether the writ has been served upon all or not.
    After the pleadings have been once made up, their amendment, by filing additional pleas, is a matter within the discretion of the court, and it would seem not ground for a writ of error.
    IN ERROR from the circuit court of Warren county.
    This cause was instituted at the May term of said court, 1838, by H. B. Hamer against F. McCaleb, as the maker of a note, and Henderson, Martin, Baldwin, Hardison and others, as endorsers thereof. The writ was served only on part of the defendants. There was no service upon Henderson, Baldwin, or Hardison. At the return term the pleas of non assumpsit and payment were filed. The first plea commenced as follows: “ And the said defendants, by their attornies, come and defend the wrong and injury, when, &c” The plea of payment commenced: “And the said McCaleb and the other defendants, by their attornies, come and defend the wrong and injury, when, &c.” It was insisted, that these pleas were an appearance for all the defendants.
    The cause was continued from term to term, until the January term, 1840, when the defendants, Martin and Henderson, asked permission to file additional pleas verified by oath, alledging that they did not make the endorsement on the note in suit, which pleas the court refused, which is the first error assigned.
    Second. It was assigned, that the jury erred in their calculation of damages; but a corrected calculation was not furnished according to the rules of court.
    Guión & Smede, for plaintiff in error.
    The record in this cause exhibits: First, the writ and declaration filed 20th April, 1838. The writ is served only on a part of the defendants, and not upon Henderson, Baldwin, or Hardison. Two pleas, non assumpsit and payment, were filed by the defendants generally. These pleas, under the ordinary practice of the circuit courts, were intended, to apply to those defendants on whom process was served. The pleas in this case were so entertained and regarded by both plaintiffs’ and defendants’ counsel, and the plaintiffs accordingly' sued out an alias writ against the above named defendants on whom process was not served. This alias writ on the 4th day of October, 1839, is served on Henderson, and returned « not found” as to Baldwin and Hardison. The record shows a special term in January, 1840, at which term judgment was rendered against defendants. There was therefore, inasmuch as a special term could at that time be legally held, only where the regular term of the court wholly failed, no term of the court in November, 18S9. And the January special term was the first term after the service of process on Henderson at which he could enter his appearance and plead.
    In the record then follows a discontinuance of suit as to Baldwin and Hardison, on whom no process was served, and the verdict of the jury and the judgment of the court. This judgment was rendered on the 17th day of January, 1840. The record further shows, that on the 4th day of the term, and of course thirteen days before the trial of the cause, Henderson and Martin, the former of whom had not yet appeared by plea, offered to file a special plea of non est factum,, denying “ that they made the endorsement of the note sued on.” The court refused to permit the defendants to file this plea. To this, exception was taken. This is the whole record so far as these plaintiffs in error, who have proceeded by summons and severance, are concerned.
    ‘ The two principal errors relied on, and which the defendants in error have labored ably, but it is hoped, unsuccessfully, to explain away, are: First. The court erred in refusing to permit defendants to file their amended plea. Second. The court erred in refusing to receive the plea offered by the defendants, at least as a plea for Henderson, who had not previously plead.
    Upon the first point. The first question that occurs in relation to this plea, is: Is the plea a good one? Secondly. Could or could not the defence set up in this plea be made under the pleas already filed? And, thirdly. Did the court err in rejecting, (if the defence could not otherwise be made,) the plea? Was or was not this plea responsive to the allegations in the declaration? If so, it is a good plea. The declaration charges them with having made a certain endorsement. This they deny in the very words charged. They did not make the endorsement. — What endorsement? Clearly the endorsement they had been charged with making.
    This action is brought under the. law of 1837. That law was only intended to save costs, by compelling joint actions. And, although the law as it originally stood, forced all the parties to unite in one plea, and permitted all matters of defence to be made under non assumpsit, yet that section of the law had been repealed and was not the law at the time of the application to file this plea. So far as these defendants are concerned therefore, though the action was joint, they had the right to set up what defence they pleased, irrespective of the pleadings of the other defendants.
    Under the plea of non-assumpsit, not sworn to, even if the above section of the statute of 1837 had not been repealed, the defendants could not under that plea make their defence, as set forth in their special plea. It has been the invariable decision of this court both before and since the act of 1837, that the plea of non assumpsit admits the execution of the note. And that the act of 1837 did not alter the effect of that plea, is evident from this: a denial of the execution of the note throws the burden of proof on the plaintiff. It is not a matter of evidence for the defendant, but only of pleading. It is not a “ matter of defence” to be made out by the evidence of the defendant, but it is a matter which changes the issue, and frees the defendants from proof until the plaintiff has by evidence, controverted the facts in the plea. The defendants therefore, could not have justice meted to them under the plea of non assumpsit. Their defence was of such a nature that it could be made only under the special plea they offered to file, or a similar one. It was a meritorious defence, and just such a case as the statute in relation to amendments was intended to apply to. It is true the allowance of amendments is matter in the discretion of the court, but it is a sound judicial discretion that the law has reference to, and not the arbitrary, wild and perverse discretion of, it might be, a wilful and corrupt judge. It is certainly a great power confided in the circuit judges, and if this court determines, that in no case, however aggravated may be the injustice done, and however, tyrannical and iniquitous the course of the circuit judge, in disallowing the amendment, will it interfere, then we had as well at once dispense with a supervisory bench, and let the law “ run riot” under the sole control and administration of the inferior tribunals. But if it was not such error in the circuit judge, in refusing the plea offered as a plea for both Henderson and Martin, as this court is competent to rectify, it was certainly a good plea for Henderson alone, and such as he had a right to file, he not having yet appeared by plea. In this branch of the case is involved the question as to what time Henderson became a party to the suit. The pleas filed did not specifically mention Henderson: they were not intended for him; the plaintiffs below so regarded them, and took out an alias writ for Henderson and the others on whom process was not served, which alias was executed on Henderson on the 4th of October, 1839, and it was then, and not till then, Henderson became a party to the suit.
    The plaintiffs below surely will not pretend that where they themselves admitted on the record that Henderson was not before the1 court, by taking out an alias writ for him, that the service of that writ will have a retroactive effect, and subject him to the operation of the pleas filed previous to the service of process on him.
    The case of Ballard Jones et al. v. Hunter, Murphy & Co. has been but lately decided, and the counsel for plaintiffs in error have had no opportunity of inspecting the facts of the case, and the principles upon which it is decided. A long list of cases from the Kentucky Reports can be cited if required, establishing as law, that the word “ defendant” in the record or pleadings, has reference only to those on whom process is served, or who appear specifically by plea. However, whatever may be the decision in the above case of Ballard et al., it certainly cannot effect the peculiar facts in this case.
    The plaintiff below did not consider the pleas first filed to be pleas for all, and took out other process, and it can only be from the service of that process that Henderson’s connection with the suit can be dated. The subsequent discontinuance of the suit as to Hardison and Baldwin, on whom no process had been served, but who according to the authority above cited had been plead for, corroborates still more fully that the pleas filed were only intended and accepted as pleas for those on whom pfoeess was served. If then Henderson had not yet appeared by plea, he certainly had that right, and the court erred in depriving him of it. The plea shows that the defence in this was a meritorious one. It is no “ technical and unconscientious complaint” — but both the law and the justice of the case require a reversal of the judgment and the granting of a new trial.
    If the pleas first filed were appearances for all the parties to the record, ivas not the discontinuance as to two of a firm, when the whole firm were before the court, error to the prejudice of the other members of the firm, these defendants ?
    Holt, for defendant in error.
    The errors complained of in the proceedings of the court below, will be noticed in the order in which they are assigned:
    1. “ The court erred in giving a judgment for the plaintiffs as against these defendants, there being no cause of action set forth in the declaration against them.”
    The note sued on matured in February, 1337; the declaration as copied into the record avers a presentation and demand in December, 1837; a defect which as to Henderson and Martin, endorsers, would have been fatal, had they demurred. They, however, pleaded non assumpsit; upon which there was a trial and verdict for plaintiffs. This, under the statute of jeofails, cured the defect in the declaration, as was expressly decided by this court in Winn v. Levy, 3 Howard, 903.
    3. “ The court erred in refusing to permit these defendants to file their amended plea.”
    At the May term, 1838, of the Warren circuit court, the defendants filed two pleas: non assumpsit and payment, to plaintiffs’ declaration. The cause stood at issue upon these pleas, until January, 1S40: a period of about twenty months — when plaintiffs in error, Martin & Henderson, asked leave to file a special plea, which was sworn to, setting forth that “ they did not make the endorsement upon the note sued on in this action.” The court refused permission to file this plea.
    It is certainly a sound practice for the court when called upon to exercise its discretion in receiving new pleas, to see that the pleas are good and present a bar to the action. If they are not of this character, as filing them is a matter of grace, the court will reject them and will not drive the opposite party to his demurrer. Tested by this rule, the action of the court in rejecting the additional plea of Henderson & Martin, cannot be pronounced erroneous ; for that plea was manifestly bad. It merely alledges that “they, (Henderson & Martin,) did not make the endorsement upon the note sued on in this action.” The declaration sets forth three distinct endorsements upon the note — to either of which the plea will apply with equal propriety. Yet if applied to the endorsement of S. & M. C. Folkes, or of Robb, it was no response to the action. As there is no principle of construction, by which the language of the plea can be made to embrace the endorsement of B. Hardison & Co. rather than the endorsements of other parties to the note, the plea was clearly defective and should not have been received.
    The suit was brought under the statute of 1837, against the drawer and endorsers of a promissory note. That statute declares that “ the court shall receive the plea of non-assumpsit and no other, as a defence to the merits in all suits brought in pursuance of this act, and all matters of defence may be given in evidence under the said plea.” Henderson & Martin, as already shown, filed the plea of ñon assumpsit in May, 1838; under it, they could give in evidence “ all matters of defence,” including, of course, the matter set up in the special plea offered in January, 1840. They sustained no injury, therefore, from the rejection of the plea, and the court in refusing to receive it, did but conform to the imperative language of the statute. This court has not yet decided that the making of a promissory note, or the making of the endorsements thereon, can be questioned under the plea of non assumpsit — but it is difficult to perceive how a different decision can be given in view of the statute of 1837, which quoad hoc, must be regarded as a repeal of the statutes of 1834 and 1836, requiring special pleas. The case of Green v. Robinson cannot be' regarded as an adjudication against the position assumed, because that was an action against the joint drawers of a promissory note alone. It was not brought in pursuance of the 
      statute of 1837, and of course neither the alligaia or probata could be regulated by the provisions of that act. The court rightly held that under the statute of 1836, the plea of non as-sumpsit admitted the execution of the note.
    The statute of 1837 further declares, that “ in all suits brought under the provisions of this act, the defendants shall not be allowed to sever in their pleas to the merits of the action.” The plea offered by Henderson & Martin, in January, 1840, was certainly “ to the merits of the action,” and was an attempt on their part to sever in pleading, from their co-defendants. The court, therefore, had no alternative, but to reject it, or treat the statute as a nullity.
    Even if the circuit court erred, in refusing permission to file the plea, it is not error, which can be reviewed or corrected by this tribunal. « The allowance or disallowance of amendments, is not matter for which error lies.” 11 Wheaton, 280; Cox’s Dig. 281, sec. 77; 9 Wheat. 576 ; Cox’s Dig. 277, sec. 32.
    
      “ The refusal of the court below to allow a plea to be amended, or a new plea to be filed, or to grant a new trial, or to. continue a cause, cannot be assigned as error. 6 Crancb, 206, Marine Insurance - Company of Alexandria v. Hodgson. These authorities are recognized, and the principle they settle, expressly adopted by this court, in Green v. Robinson, 3 Howard, 117, 118.
    3. “ The court erred in refusing to receive the plea offered by the defendants, at least as a plea for Henderson, who had not appeared previously by plea.”
    This assignment of error proceeds upon a mistake of fact. The record shows that Henderson had previously (May, 1838) appeared by two pleas, non-assumpsit and payment. It is true, that he was not specifically named in the body of -the pleas, nor was this necessary to constitute an appearance on his part. The pleas, after giving the style of the case, recite that “ the said defendants, by their attorneys, come and defend,” &c. Language, which this court has decided, embrace all the defendants, as well those who have not been served with process, as those who have. See Ballard, Jones et al. v. Hunter, Murphey & Co. decided at January Term, 1840, 4 Howard, 342.
    4. « The jury erred in their calculation of damages.”
    
      If any error of this kind exists, it is of a character too slight and paltry to warrant a reversal of the judgment; it cannot, at the utmost, exceed fifty or sixty cents, and may fall short of it.— Surely, in a judgment of this magnitude, such a trifling excess would not be ground for the interposition of the appellate court, especially after the party had acquiesced in the Court below, by omitting to move for a new trial, or otherwise object to the verdict as found. It should not be tolerated' in a party to lie by in silent submission when a verdict is returned and judgment rendered against him, and then spring upon his adversary, in this court, an objection which, had it been made or intimated below, would have been obviated by an unhesitating remittur. In 3 Randolph, 516, it is said that a party must move for a new trial, or there is nothing for the appellate court to reverse.
    In Littell’s Sel. Cases, 180, the court held that in the cases-where the excess is so trifling, as that now complained of, even a new trial will not be granted; a fortiori, will a reversal of the judgment.be denied, when no such motion was made in the court below. The court, in the authority cited, held this language:— “ It is true, the verdict seems to have been given for a larger sum than is strictly warranted by the evidence; but the excess is so inconsiderable, that we think for that cause the verdict should riot be set aside. The costs of a new trial would, in all probability, amount to as much as the excess found by the jury. To grant a new trial for that cause, would be calculated, more to gratify a litigious disposition, than to attain substantial justice.” The principle of this decision is fully applicable to the case at bar. Be minimus non curat lex, is an ancient and sensible maxim of the law, and if it does not furnish a conclusive response to the excess complained of, we are at a loss to imagine a case to which it would be applied. In the language of another authority, «the play, in such case, is not worth the candle.”
    As no bill of exceptions was taken, for aught that appears to the court, the excess complained of, may have been made up of the notary’s fee for protesting the note. Probably, a recovery could not have been regularly had, for these fees, without a special count including them; but if no objections were made by defendant, it was certainly competent for the plaintiffs to have offered evidence as to these fees, and for the jury to have embraced them in their verdict.
    However, this last assignment of error need not be further noticed by the counsel, inasmuch as it cannot be noticed by this court; there being no calculation attested by disinterested counsel, furnished as required by the rule, and as such calculation was not filed when the case was submitted, we presume it would not be received afterwards if tendered, as opposite counsel would have no opportunity of inspecting it, and as it would subserve a most technical and unconscientious complaint.
    Harrison, on the same side.
    Counsel for plaintiff in error, in reply.
    Conceding the position to be true that this court will not hold it error in any case, for the circuit judges to refuse to allow amendments, upon the ground that the law has confided that power to their discretion, still we contend that as the plea offered in this case was a new and different plea, setting up a new de-fence under the statute, Rev. Code, page 116, we were entitled to file it before the cause came on for trial. The law gives the judge below no discretion on that subject. Suppose on the first day of the term to which the writ was returnable, the defendants had offered two pleas, and the court had refused to receive one on the ground of its being a matter in its discretion, would not that have been error ? If then a plea was filed in sufficient time to prevent a judgment by default, is not the language of the law, allowing any number of pleas, sufficiently comprehensive to embrace the case at bar, when the application to file the plea is made in sufficient time. There is no limitation as to time or term in the statute. And if it could be held to apply to any period after the first day for pleading was past, the merits developed by the plea in the case at bar, would justify the application to this cause. The number and nature of the pleas to be filed is left to the defendant, and the time for filing them not limited.
    The court will observe that Henderson, the very first opportunity after the service of process on him, and he has thereby received notice of the pendency of the suit, makes application to file his plea, a plea full of merits; and it is rejected by the court. Why ? Because, says the record, the plea of non assumpsit was previously filed.
    In the previous part of this brief, we have contended that that plea was not deemed to embrace Henderson and the others on whom process was not served, 1st. Because the plaintiffs below refused so to regard it by taking out an alias writ, and 2d. by discontinuing as to those on whom process was not served. And thirdly, we now contend, that it is only a plea in law as well as fact, for those on whom process was served. • The word defendants has a technical meaning: it means only those who are. parties to the suit either by service of process, or special, voluntary appearance. The use of.the word “defendants” either in pleadings, or in the entries of clerks, or the use of the word “parties” in,similar cases, does not embrace those defendants on whom no process was served. To make them parties or defendants,,(convertible terms,) when no process is served", there must be a special voluntary appearance. In the case of Gates’ devisees, v. Clark, 4 Bibb. 415, it was decided that this entry, “ the parties by their counsel consented that a survey may be used, &c.” did not mean those on whom process was not served. In the cáse of Keith v. Gore, 1 J. J. Marshall, 8, it is decided that “parties” means those before the court, by service of process. In the case of-Foster et al. v. Hall, 2 J. J.Marshall, 546, “the defendants appeared’’ has the same construction given to it by the court. In Violpt v. Waters, 1 J. J. Marshall, 303, the same decision was made. In the, case of Sanders’ heirs v. Jennings and Freeman, 2 Dana, 37, two of the defendants had,-not been served with process ; anil the courts decided that this entry on .the record did not amount to an appearance for them, to wit: “ this day came the parties by their attornies and by consentthe answer of. Sanders’ heirs is to be taken and considered the answer of Prentiss and Bouldin. This entry, expressly mentioning the parties to the suit, the names of Prentiss and Bouldin, and .the consent of their attornies, was held not to amount to an appearance for them, although the entry could not. have been made without great impropriety .except by their consent.
    But in the case .of De Wolf v. Mallet’s Administrators, 3 Dana, 216, the court used this strong language. «It is the settled rule of this court to consider general entries on the record of the appearance and pleadings of defendants, as referring to those defendants’ on whom process had been served.” The various constructions' of the words defendant, and defendants, so as to consider the entry as corresponding with the process, show that the process and return upon it aré looked upon as governing the question of who are parties, if there be not a special entry showing the appearance of some one-not served with process!
    This last decision is directly in point. The word defendants "Was used in the plea. There were nine or ten defendants in the case. The use of the word defendants, then, cannot be construed to embrace those on-whom no process -was served.' It was not a special entry of ,an appearance for them; and if not, then, under the decision in 3 Daña, p. 216, they were not parties to this suit. So cogent, at'least, to the plaintiffs below, did this reasoning appear, that they ordered “ process additional,” for those not, served with process, which was. served on Henderson, and thereby he became for the first time a party to the suit, and as, such entitled of right to file his plea. If the'court,-however, conceives this branch of the argument unsound, it does not affect the other error assigned, to-wit: that the court, in 'refusing to permit the plea to be filed for both the defendants, erred.1 Under this section of the Revised Code, mentioned above, to wit, sec. 49, p. 116 : “The defendant in any cause may plead as many several matters, either of law or fact, as he .‘ may judge necessary to his defence: provided he be not admitted to plead and demür to the whole.”— This is a right conferred by law on the defendants, and does not rest in the discretion of the court.
   Mr. Chief Justice Shaheev

delivered the opinion of the court.

This suit was instituted to the May Term, 1838, of the circuit court of Warren county, by the defendants in error,1 against F. McCaleb, the maker-, and the plaintiffs in error, and others, as endorsers of a promissory note. Process was not served on Henderson ; but an alias was afterwards shed out and executed. At the return term, however, two pleas were filed, non'assumpsit and payment, which professed to be for- all the defendants. The language of the first plea is as follows, to wit: « and the said de-fen dan ts, by their attorneys, come and defend the wrong and injury when,” &c. That of the second.is: “and the said McCaleb, and the other defendants, by their attorneys, come and defend the wrong and injury,” &c. It is impossible-to limit, these pleas to any particular defendants. The latter ■ especially professes to speak for all of them. These pleas fall precisely within the rule established in the case of Ballard, Jones et al. v. Hunter & Murphey, decided at last January-Term, in which a plea beginning like these was held to be an appearance for all.the defendants, as well those who had not been served with process, as those who had. , These defendants were therefore all properly in court, and. the issuing of an' alias cannot change the' case. It may have been issued by mistake; it certainly was unnecessary.

The cause was continued'from time to time until January, 1840, when the defendants .below, Martin & Henderson, asked leave to amend their pleadings, and .tendered a plea verified by oath, that they did not make the endorsement on'the note;/which plea was refused by the court, and a bill of exceptions was therefore taken, and it is now assigned for error that the court refused to receive the additional plea-. ■ ■ , .

It becomes material, in the first place, to inquire whether the court was -bound to allow the amendment, or whether it was a matter over which the court had discretion. This point depends on the construction of the statute. The 99th’ section Rev. Code,-. 136, provides, that “ the .courts (of law have full power and authority to order and allow amendments to be made in all proceedings whatsoever before verdict, so as' to bring the merits of the question between the parties fairly to trial, and if amendment is made after the jury is sworn, a juror shall-be withdrawn,- and in all cases, where amendments are made, the adverse party shall have time allowed him, in the discretion of the court, to prepare to support his case upon the state of the proceeding so amended, and such costs shaíl'be allorved/’.&c. Amendments by the common law were such alterations in the proceedings as the courts chose to permit the parties to rnake before trial. As they related merely-to the means of attaining justice,-they may be said to have had their origin in the discretion of the courts., -The whole doctrine of amendment is a doctrine of practice merely, and as such has of course sprang up at the volition or permission of the courts of justice. And although the rules in relation to amendments may be as well settled and as well defined as any other rales of practice, yet they are still in a great degree subject to the discretion of the courts. This must be so, so far as they were adopted as rules of discretion, so they must remain until changed by statutory regulation. It was thought, however, that the English courts did not go far enough in allowing amendments to be made, and several statutes were passed, authorizing them to go further than by the practice they had felt authorized to go.— These statutes, however, did nothing more than confer the power on the courts; they were not required to exercise it as a matter of right to the parties; but authorized to allow amendments if justice seemed to require that they should be made; so that in reality nothing was changed except the extent to which amendments might be allowed. Hence we find it laid down by elementary writers, even since these statutes, that “ amendments are in the .discretion of the. court.” I apprehend that our statute cannot be construed to go further. It professes to do nothing more than confer power on the court. It does not say that the court shall allow amendments, but that it “shall have power and authority” to do so. But that this statute does not interfere with the. discretion, is manifest for another reason. For what purpose is the court authorized to allow amendments? “To bring the merits of the question between the parties fairly to trial.” If an amendment offered be not calculated to do this, the court may rightfully reject it. The court must necessarily therefore have discretion in deciding whether the amendment be material or not. Otherwise the party might encumber the record and embarrass the proceeding uselessly, and from captious motives.

If we are not mistaken, then, in supposing that-our courts have a discretion in allowing amendments, it only remains to determine whether the exercise of that discretion is ground of error. In doing this, we need only refer to the authorities. The question is not entirely a new one .in this court. In the case of Babcock, Garden, & Co. v. Scott & Robinson, 1 Howard, 100, a refusal to grant a continuance was held not to be error, because it was a matter within the discretion of the court. In Newman v. Foster’s heirs, 3 Howard, 383, it was held, that the allowance of amendments is not a matter for which error will lie.” In Connecticut, error does not lie to correct the decision of the court in matters over which it has discretion, 1 American Digest, 137. In North Carolina the refusal of an inferior court to allow pleadings to be amended, or to continue a cause, or any other exercise of a discretionary power, is not cause of error. 3 American Digest, 303. And so it has been decided in Maryland and New Jersey, 5 Amer. Digest, 313. In the case of The Marine Insurance Company v. Hodgson, 6 Cranch, 206, the Supreme Court of the United States held that the refusal of an inferior court to receive an additional plea, or to amend one already filed, could never be assigned as error. This decision was adhered to by the same court after-wards. United States v. Buford, 3 Peters, 13. However well this rule may be settled, yet it would perhaps be going too far to say that it is without an exception. In the case of Mandeville & Jameson v. Wilson, 5 Cranch, 15, Chief Justice Marshall observed, “ that the permitting amendments is a matter of discretion. He did not mean to say that a court may in all cases permit or refuse amendments without control. A case may occur where it would be error in a court, after having allowed one party to amend, to refuse to suffer the other party to amend also before trial.” It is not necessary for us in the present case to say that there might not also be other exceptions. Perhaps a perverse refusal in the first instance to allow amendment, where justice absolutely required it, and where the party wishing to amend had not been in fault, might be subject to the control of an appellate court. It is not now necessary, however, so to decide, since the present case does not present such a question. ' Here the party applies to amend his own faults. Under the English practice a distinction was taken in allowing amendments, between the mistakes of the party and the mistakes of the clerk. Less latitude was allowed in the former than in the latter case. Green v. Kennet, 1 Dunford & East, 783. For this reason, as well as for the lapse of time which intervened between the appearance and the application to amend, we are the less inclined to disturb the judgment. The parties appeared at the return term and presented two issues, non assumpsit and payment, and nearly two years afterwards they come in and wish to deny the making of the endorsement under oath. If that fact were true, they certainly were informed of it at the outset. By allowing the amendment the onus would have been changed from the defendants to the plaintiffs, and additional delay would iii all probability have been the consequence. The parties cannot complain of a hardship which was so easily averted, and which they have brought on themselves by their own fault.

The judgment must be affirmed.  