#### Charles Kennedy *vs.*James W. Barker.

Law. No. 22,158.

Decided May 20, 1881.

1. Where the maker and indorser of promissory notes are sued upon a declaration containing the money counts only (the notes being annexed), and a discontinuance is entered as to indorser, the affidavit filed at the time of bringing the suit applies to the declaration so amended, and unless the pleas are verified, the plaintiff is entitled to payment under Buie 73.

2. The affidavit of plaintiff’s cause of action, though inartifieially drawn, if in substantial compliance with the rule, will be sustained.

STATEMENT GE THE CASE.

Motion to vacate a judgment taken by plaintiff for want of an affidavit of defence to the plea of defendant under the 73d rule. This rule provides that in actions arising *ex contractu*if the plaintiff shall have filed at the time of bringing his action an affidavit setting out distinctly his cause of action and the sum *he claims to be due, exclusive of all set-off's and just grounds of defense,*and shall have served the defendant with copies of his declaration and of said affidavit he shall be entitled to a judgment for the amount so claimed with interests and costs, unless the defendant shall file along with his plea an affidavit of defence, &c.

The declaration contained the common counts only, and the bill of particulars thereto annexed consisted of five promissory notes made by James *W.*Barker and indorsed by Z. Jones, the payee, who were the defendants in the suit.

The verification of the declaration is given below as it was sustained, but criticised by the court.

*341“ I, Charles Kennedy, make oath that I am the plaintiff in the above-entitled cause, and that the cause of action therein stated against the defendants, and the sum claimed to be due from and payable by them, by reason of the premises, exclusive of all offsets and just grounds of defense, are distinctly and truly set out in the foregoing declaration and the particulars of demand thereto annexed; said particulars of demand being five (5) promissory notes, which I own, and I bought the same for a valuable consideration, a long time before the maturity of them or either of them ; that said James *W.*Barker signed said notes, and each of them, and said Zephaniah Jones signed his name as endorser thereon ; that at the maturity of said notes and each of them, the plaintiff caused them to be each, severally, presented at the different banks where each note is respectively payable in the body thereof, and said notes were each protested in due form of law, whereof said Jones, as endorser, was duly notified.; but to pay said'notes or either of them, or any portion thereof, said Barker and said Jones, or either of them, have wholly failed ; and I claim of said James *~W.*Barker, and said Zephaniah Jones, the sum of $90.54, with interest (at 8 per cent, per annum until paid) from May 13th, 1879 ; $136, with interest (at 8 per cent, per annum until paid) from July 19,1879 ; $145.50, with interest (at 8 per cent, per annum until paid) from July 19, 1879 ; $315 with interest (at seven (7) per annum until paid) from August 23d, 1879; $600. with interest (at seven (7) per cent, per annum until paid) from August 28th, 1879 ; and also costs of protests on said notes, to wit, $9.75, and costs of this suit; the same being the amounts due and owing to me by said James W. Barker and said Zephaniah Jones, as the maker and endorser respectively, on said promissory notes, which are my property, on which I bring this suit.”

The defendant demurred, and the plaintiff discontinued as to the indorser, and amended his declaration so as to make the said ffames W. Barker sole defendant, and the latter party was required by rule of court to plead within ten days after service of the amended declaration. The *342defendant interposed three pleas, but failed to verify them by an affidavit of defense; and thereupon the plaintiff took judgment for the amount of his claim. A motion to set aside this judgment was overruled, and the case is here upon an appeal from that order.

"Woodbury "Wheeler for plaintiff.

W. P. Bell and A. C. Bradley for defendant:

Argued that the affidavit filed with the declaration does not operate as a verification of the amended one, and that consequently no affidavit of defence was required to be filed with the pleas; and that the declaration was for a different amount and between different parties ; and that plaintiff’s verification was defective in not stating his indebtedness exclusive of all set-offs and just grounds of defense.

Mr. Chief Justice Cartter

delivered the opinion of the court.

This appeal is from a judgment against the defendant under the 73d rule. The plaintiff amended his declaration, and the question is, whether the affidavit filed at the time of bringing his action, setting out his cause of action, as permitted by rule 73, is to have the same effect upon the declaration as amended as it had upon the original. In other words, does the affidavit survive the amendment so as to operate as a verification of the latter pleading. "We do not.think that the amendment should do away with the verification unless it introduces new and material allegations. Here the cause of action and the bill of particulars are the same, and there is no change except that the indorser is dismissed from the suit.

When the amendment is merely formal and not in matter of substance, the cause of action, for all practical purposes, is not in the slightest degree affected, and in such case the verification ought to have the same authority as when first filed.

An objection was also taken on the argument that the affidavit does not set forth the indebtedness claimed by the plaintiff to be due, exclusive of all set-offs and just grounds *343of defense. The affidavit is involved and inartificial, and while it deserves unfavorable criticism in point of form, we think, upon examination, that it is in substantial compliance with the rule. .

The judgment is affirmed.