¶1Suit on a note, and to foreclose a mortgage. An answer was filed consisting of seven paragraphs; to the fourth of which, a demurrer was sustained, and leave taken to amend the same. The amendment was not filed until the jury was being empanneled, and was not brought to the attention of the Court and opposite party until the evidence had been heard; it was then insisted that the trial had been had without an issue as to that paragraph. Tbe record of the clerk states, that, on leave, a replication was then filed! a bill of exceptions shows, in connection with other parts of the record, that it was a denial. The pleading copied in the record by the clerk as a reply to said fourth paragraph, is a demurrer.
¶2It is now urged, that there was, as to the said fourth paragraph, a trial without an issue of fact, and while an issue of law was pending thereon; and if not, that it was error to permit the plaintiff to file the reply at the time it was filed.
¶3We think it sufficiently appears that a reply in denial was filed, and that it was not an issue of law tendered. We see no error in the Court permitting said filing at the time. The jury were re-sworn, and the evidence again heard.
¶4If permitting the completion of the issue, and causing the trial to then proceed upon it, would injure the defendant, he should have, in a proper manner, brought that fact to the attention of the Court.
¶5Before trial, a motion was made for a continuance to *241procure the attendance of one Dennis as a witness. ' It is not shown that any diligence had been used to procure his attendance. This apparent neglect is attempted to be excused. in consequence of the circumstances of the case. The note was alleged, in the answer, to have been executed to secure the amount found due by said Dennis, as an accountant, from one party to the other, upon the dissolution of a partnership; and that a mistake occurred in said accounting and settlement, which is pleaded, &c. It is stated in the affidavit, that the witness would have to examine the books and accounts, before he could testify as to such mistake, and that he had not had time to do so, &c.
¶6We do not think this is a valid excuse for the failure to procure his attendance. Upon the alleged item of mistake being brought to his notice, he might have been prepared to testify; if not, he could, under the direction of the Court, have made an examination. Perhaps, if he could not testify without such examination, the party desiring his evidence could not in any other way compel the same, and thus be prepared to avail himself of the evidence.
¶7There was a judgment for the amount of the note, and for a foreclosure of the mortgage. The record purports, in a bill of exceptions, to contain the evidence. The mortgage is not in the bill, as a part of said evidence. The original mortgage, it is averred, was filed with, and as a part of, the complaint.
¶8It is now insisted, that the decree of foreclosure is erroneous becau.se the jury did not find upon that point, and because the mortgage does not expressly appear to have been given in evidence.
¶9The jury found the amount due; and upon that, it was the duty of the Court, if the evidence warranted it, and the party desired it, to order the foreclosure. We are of opinion, that for that purpose, the mortgage was before the Court in a form that authorized its consideration.
¶10Per* Guriam. — The judgment is affirmed, with 3 per cent, damages and costs.