Hagood v. Mitchell

17 S.C.L. 124

• Court: Court of Appeals of North Carolina
• Decided: December 15, 1828
• Status: Published

Opinion

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.