
    Walling v. Williams and others.
    An amendment of the petition wliieli merely corrects the description of a note sued on does not entitle the defendant to jilead anew, as in the iirst instance, f Note !)d.)
    Issues of law should be offered before issues of fact. Alter tin issue of fact has been made, the defendant cannot, by simply obtaining leave to amend, tenderán issue of Jaw; but if a defendant discover, after forming tin issue of fact, that there tvas a legal defense which should have been interposed by making a timely application to the court for leave to withdraw the defense first, made, and to interpose lilt* defense at law, the court, on sutiicient reason being shown, could grant the leave on such terms as should bo thought just and proper.
    Appeal from Nacogdoches. The appellant brought suit against (lie defe-sd-ants as successive indorsers of anote given by one Allison. The plaintiff alleged that lie had sued Hit* maker on the note, and that on tiie plea (hat he had never made it, the dcíeudant liad judgment in his favor before a justice, of the peace. The suit was brought to the April Term, 1842, of file court, At tiie same term to which tiie suit was brought, tiie defendants, each of them by different counsel, tiled sepárale answers, denying all indebtedness. Two terms of the court seem to have passed without any entry. At tiie.-November Term, 1848, the cause was continued by the defendants. At the May Term, 1811, it was continued by consent. 'At the November Term of tiie same year it was continued, without stating by what party; from which time no order seems to have been taken until September Term', 1840, it was continued by the court, in consequence of (he judge having formerly been counsel in the case. On (lie 10th of March. 18-10, new counsel appeared for the defendants, and without any regard to tiie answers liled about live years before, on the permission of the court, liled a new defense in the nature, of a general demurrer. At the September Term, 1847, the plaintiff amended by inserting the word “calves” after “cows” in the description of tiie note. This seems to have been done without an application for leave and without objection. At tiie same term the plaintiff, by counsel, moved the court to strike out the demurrer liled by the defendants, which mol ion was overruled, and the plaintiff excepted. The defendants at the same term again filed a demurrer, alleging it to he an amended answer to the amended petition of tiie plaintiff’. At (lie Fall Term, 1848, the demurrer was sustained by tiie court; from which plaintiff appealed.
    
      J. P. Henderson, for appellant.
    I. The court erred in overruling the plaintiff’s motion to strike out the demurrer of tiie defendants. The demurrer came too late after the answer upon the merits.
    II. The second ground of objection to the judgment of the court below is that the court erred in sustaining tiie defendants’ demurrer. The ground upon which it was sustained was, that tiie plaintiff’s petition shows that lie did not sue tiie maker at the first or second term of the court. If the note sued on was not executed by Allison, but was in fact a forgery, as ivas shown by his plea in the suit against him before the magistrate, then it would seem that the plaintiff was not obliged to use due diligence to collect it from Allison; it not being a case where defendants were entitled to notice, even if the note liad fallen due after the act of 1840. He was not bound to sue the pretended maker at all, but might, at any time within four years after tiie first transfer of said note, have sued the indorser by taking it upon himself to prove the. note a forgery as far as Allison was concerned. The judgment of the magistrate’s court is ¡it least prima facie proof that the note, isa forgery. If a forgery, then the defendants’ l-iglits could not be injured by any delay in proceeding against Allison, as the mcyicy could not have been collected off of him if suit had been commenced the day after tiie note was transferred to the plaintiff. In this point of view the defendants stand as drawers of a bill of exchange upon a person in whose hands they had no funds and whom they liad no right to expect to accept or pay. This is surely $>*;at least as far as the payin' of the note, Williams, is concerned. TJjie defendant and last indorser, Spai U-. eanno! wmplain because suit was i 'Abroug! • against Allison sooner than i, was, a-i in lcnew that Allisou had fai fyo \>iiy : ■ note when it became due. h.- bavin:;- i■ tnsferred it on tlie Sill of f táfimbr:- -- -t it fell due. (5 S. & hi. :?70 ; 17 Wend. 11., 94.) *V
    Note 92. — On the subject of the amendment, of petition setting up a new cause of action, see Turner v. Brown, 7 T., 489; Greenwood v. Anderson, 8 T., 225; Pridgen v. Strickland, 8 T., 427; Henderson v. Kissam, 8 T., 46; Bell v. McDonald, 9 T.. 378; Tryon v. Butler, 9 T., 553; Williams v. Randon, 10 T., 74; Kenney v. Lee, 10 T., 155; Ward v. Lathrop, 11 T., 287; Pridgen v. McLean, 12 T., 120; Whitehead v. Herron. 15 T., 127; Chapman v. Sneed, 17 T., 428; Morrison v. Walker, 22 T., 18; Weatherford v. Van Alstyne, 22 T., 22; De Walt v. Snow, 25 T., 320; Thouvenin v. Lea, 26 T., 612; The Governor v. Burnett, 27 T., 22; Erskine v. Wilson. 27 T., 117; Usher v. Skidmore, 23 T., 612; Furlow v. Miller, 30 T., 28; Walker v. Howard, 34 T., 478; Kosehurts v. Healy, 36 T.. 666; Littlefield v. Fry, 39 T., 299; Smith v. Anderson, 39 T., 496; Lewis v. Davidson, 39 T., 660; King v. Goodson, 42 T., 152; McIlhenny v. Lee, 43 T., 205.
    
      Ti - mas J. J*. ■'rings, for appellees.
    We tlie on of the court upon the en-lion to -¡rke out not necessary to !>' ijtvisud, a- the amended petition opened the pleadings and rendered the demurrer admissible, if that matter were otherwise doubtful; but we, think a general demurrer at all times admissible against a plaiutill'at least, as the, same grounds would be available under a motion in arrest of judgment. The amendment of tlie petition, though ncees-ary, does not cure the defect of diligence to charge the indorsers, and nothing lmt inspection of the pleadings is necessary to show that tlie demurrer was properly sustained.
   In prfCOMB, J.

The amendment made by the plaintiff was trivial and unimportant. and could not change, or affect the answer tiled by the defendants so long before, and afforded no pretense for opening the pleadings anew. Although the ends of justice allow great latitude to tlie discretion of the District Court in p-rmitting amendments, yet we believe that to allow a new defense, setting up a defense in law, live years after an issue in fact had been formed, would lie too great an irregularity in practice, and would be very often productive of much injustice and hardship, and ought not be permitted 1111 less under very peculiar circumstances. In this case it is very clear that it would, if successful, impose much cost on the plaintiff that would have been avoided had tlie defense in law been first set up by the'defendants. And further, liad the defense in law been set up at first, it is not improbabl- that tlie plaintiff could have amended liis petition and averred and proved facts that would have excused him from the consequences of not having'Sooner sued tlie maker of tlie note. This is rendered more probable from tlie circumstances that the maker avoided the note, when sued on, by the plea of non est factum.

There is another irregularity presented in tlié record in this case that it is not improper to not iee. Tlie defendants, live years after forming an issue of fact, ’amend by presenting one, of law. Now it is difficult, to perceive in what way an issue of fact is amendable by an issue, of law. They are distinct in their character, and tlie last, by our practice and that of all other courts, should be offered first in order of time. If the counsel should discover, after forming an issue of fact, that there was a legal defense that should have been interposed by making a timely application to the court for leave to withdraw the defense first made and to interpose the defense at law, the court, on sufficient reason being shown, could grant leave on such term’s as should be, thought just and proper; but it is never considered a matter of right-. We believe the court erred in not striking out the plea last, offered by the defendants, and for this error the judgment must be reversed and tlie cause remanded.

Judgment reversed.  