
    Henry Hagood v. Thomas Mitchell.
    Columbia,
    Dec. 1828
    If the body of a summary process set forth the cause of action specifically, the objection, that a copy of the instrument, on which the action was founded, has not been indorsed, comes too late after the plaintiff has proved his case, and closed his evidence, vide Davis v. Hunt, 2 Bailey, 416.
    Tried before Mr. Justice James, at Fairfield, Fall Term 1827.
    This was a suit by summary process on an inland bill for fifty dollars. The cause of action was fully and particularly set forth in the body of the process ; and at the trial the case was completely made out by evidence. When the plaintiff had closed, the defendant suggested that a copy of the note had not been indorsed on the process ; upon which the presiding Judge directed a nonsuit. The plaintiff now moved to set aside the nonsuit.
    37th Rule, Tfililb pfxviib
    Weathersbee, for the motion.
    Clarke, contra.
    
   Nott, J.

delivered the opinion of the Court.

There is no law requiring a copy of the pote or other instrument, on which a summary process is founded, to be indorsed on the process. It is only a rule of Court, the object of which is to prevent surprise, by giving the defendant more specific no-^le cause °f action, than is usually exhibited in the body of the process. But if he would have the advantage of the omission, he must avail himself of it at the return of the process; and must be considered as having waived it by pleading to the merits, or going to trial, and suffering the note or other instrument to be read in evidence. In this instance the objection was not made until the testimony was closed on the part of the plaintiff ; and the defendant ought not to have been allowed the benefit of it at that late period. The nonsuit must therefore be set aside.

Motion granted.  