Boisseau & Martenez v. Kahn

62 Miss. 757

• Court: Mississippi Supreme Court
• Decided: April 15, 1885
• Status: Published

Opinion

Cooper, C. J.,

delivered the opinion of the court.

The court should have permitted the plaintiff in attachment to amend the bond by having the sureties to sign their names individually instead of as a firm, Code of 1880, § 2464; Gaddis v. Palmer, 60 Miss. 758, and by having the clerk who issued the writ to subscribe his name to the jurat of the creditor’s affidavit taken by him. Green v. Boon, 57 Miss. 617.

The application for leave to file the account sued on should have been granted. The defendant could not have been surprised to have some cause of action presented against him in the suit, for by the affidavit for attachment he was informed of the sum demanded by the plaintiffs, and if by reason of .the items which appeared in the account he had declared that he was taken by surprise, the court should have protected him against any undue advantage which might have arisen to the plaintiffs, by continuing the cause. In McCleary v. Anthony, 54 Miss. 708, the plaintiff was permitted to add to his account new items in addition to those on which a trial was had before the justice of the peace. It was there intimated that perhaps the sureties of an appealing defendant might object to such an amendment, as tending to increase the liability on their bond for a matter which was not in controversy when they assumed the obligation. It .is manifest that such could not be the result in this case, for the sureties knew that the plaintiff claimed a certain amount as due from Kahn, and the proposition of the plaintiffs was to file the account which the statute required should be filed asa condition precedent to the introduction of evidence to sustain their claim. No effort ivas made to add to the demand asserted in the court below, the sole purpose of the amendment being to show what the nature and character of that claim was.

The judgment is reversed.