
    Daniel McMahan v. William B. Murphy. Same v. William C. Pearson.
    Columbia,
    May, 1830.
    A joint and several obligation is sufficiently described as the several obligation of the defendant alone; and an obligation, to pay on a day certain, is properly described as an obligation, to pay on request according to the tenor and effect.
    The name of the plaintiff’s attorney must be stated in, and subscribed to, the decimation. The omission of either is ground for special demurrer, although the attorney’s name is indorsed; but the plaintiff will be allowed to amend. Semble, as to the first point.
    The amendment of a clerical error is not an absolute ground for a continuance by the opposite party.
    Tried before Mr. Justice O’Neall, at Union, Spring- Term, 1830.
    These were separate actions of debt upon a single bill. The declaration in each case described the bill as the several obligation of the defendant alone, without stating that there was another obligor; whereas, in fact, the bill was the joint and several obligation of both defendants. The declarations also, after setting forth that the bill was payable on a day certain, described it as creating a liability to pay, “ when he, the said defendant, should be thereunto afterwards requested, according to the tenor and effect of the said bill.” The name of the plaintiff’s attorney was, iti neither case, stated in the body of the declaration, nor subscribed to it; but was in both cases indorsed.
    The defendants craved oyer, and demurred specially, assigning for cause: 1. That the bill was insufficiently described as to the parties to it. 2. That it was improperly described as to the obligation created by it. 3. That the name of the plaintiff’s attorney was neither stated in, nor subscribed to, the declaration.
    The presiding Judge overruled the demurrers on the two first grounds. It was only necessary to describe the bill according to its legal effect. Formerly, it was usual in describing a joint and several obligation, to set forth that it was made by the defendant and the other obligors ; but that practice had long since ceased, and it was now regarded as sufficient to describe it as the several obligation of the party sued. The liability created was also well described. It was in law, and in fact, a liability “ to pay, when requested according to its legal tenor and effect.” His Honor, however, sustained the demurrers on the third ground. The objection was very technical; but by well established usage it was necessary, both that the declaration should state, that “ thereupon the said plaintiff, by A. B. his attorney, complains, &c.” and that it should be signed by counsel, and it w, s safer to adhere to the practice. As the omission, however, was a mere clerical error, the plaintiff was intitled to amend.
    The defendants moved for a continuance, which was refused ; and the plaintiff took a verdict in each case. The defendants now moved to reverse his Honor’s decision on the two first grounds of demurrer, or for a new trial, on the ground, that, after an amendment by the plaintiffs, the defendants were intitled to a continuance as a matter of right.
    B. M. Pearson, for the motion.
    Clowney, contra.
    
   Colcock, J.

delivered the opinion of the Court.

We concur with the presiding Judge in the result of his legal views of this case ; but express no opinion as to the third ground of demurrer, which was sustained by him. It was in his discretion to grant a continuance or not; and we think his discretion was properly exercised,- for no injury could result, or any sur-prize be effected by such an amendment.

Johnson, J. and Evans, J. concurred.

Motion refused.  