Bank of Chilicothe v. Dodge

Headnote

A plaintiff may amend his declaration upon terms, after issue joined, by adding two or more new counts for the same cause of action, setting forth a special agreement.

Motion by plaintiffs for leave to amend their declaration by adding two or more new counts for the same cause of action.

This action was commenced by declaration containing the common money counts, to which was subjoined a bill of exchange, as follows: “$5,000—Farmers’ Bank of Seneca county, three months after date, pay to the order of R. D. Dodge, five thousand dollars and charge this institution. Romulus, Sept. 80th, 1889. Gr. P. Hosmer a cashier, to Walter Mead, Esq., cashier, New-York, indorsed Reuben D. Dodge, D. B. Dodge.” The defendant '-pleaded the general issue with the usual notice of set-off, verified by affidavit, and an affidavit that the defendant had not been served with notice of the non-payment or non-acceptance of the bill of exchange. Plaintiffs’ attorney stated that after he received the plea, he was advised that at the time the defendant indorsed and delivered to the plaintiffs the bill of exchange, he promised, undertook, and agreed with the plaintiffs, and represented to them, that the drawers of the bill of exchange were an incorporated banking company, authorized to draw and negotiate bills of exchange, and were a good and responsible corporation or bank, and that after he had received the plea he was advised that there never was any such body corporate as the Farmers’ Bank of Seneca county, authorized to draw and negotiate this bill of exchange ; that it was necessary for the plaintiffs to add two or more new counts to their declaration for the same cause of action, setting forth the special agreement and undertakings of the defendant with the plaintiffs in that behalf.