Pinkham & McDonough v. McFarland & Elrod

Murray, C. J., delivered the opinion Of the Court. Heydenfeldt, J., concurred.

The endorsements of the notes sued on are not denied with sufficient certainty by the answer; if they were, the defendants ought to have objected to their introduction in evidence.

[138]As no such objection was made, the plaintiffs were warranted in supposing it was waived, and the subsequent motion for nonsuit was a surprise upon them which the Court should have relieved, by admitting further testimony.

The power of opening tip a case after it has been once submitted, rests in the sound discretion of the Court hearing the cause, which we will not as a general rule attempt to revise. In this case, however, the plaintiffs have beejMfc^l by the acts of the defendants, and justice requires that a ne^^HBmould be granted*

Ordered accordingly.