¶1Suit on a promissory note, by Albert J. Redway and Stephen R. Burton as assignees of Hugh MeHabb, the payee, against James H. Crawford, the maker, of the note.
¶2The defendant answered in a single paragraph, setting up facts tending to show a failure of the consideration upon which the note was given, and, issue being joined, he then filed his affidavit, alleging the absence of a witness by whom he claimed he could prove some of the material facts set up in his answer, upon which he moved for a continuance of the cause.
¶3The court overruled the motion for a continuance, and the cause was submitted to a jury for trial.
¶4At that point leave was given to the defendant to withdraw his answer, and to file an additional paragraph in its place, and an additional paragraph was thereupon filed, as follows :
¶5“ And, for further and other answer to the plaintiffs’ complaint herein, the defendant denies that said Hugh Mc-Uabb, the original payee of said note mentioned in [the] «complaint, made the assignment of said note as the same *575now appears thereon, hut he avers that said McNabh endorsed said note to ‘ Redway & Burton & others,’ and that the persons mentióned and designated as ‘ others ’ have not been joined as parties in this suit.”
¶6The trial then proceeded upon the issue formed by this new answer, terminating in a verdict and judgment for the plaintiffs.
¶7One of the errors assigned here is upon the overruling of the defendant’s motion for a'continuance, hut, as the answer setting up the defence, to sustain which the continuance was prayed for, was withdrawn, and the cause tried upon another and different issue, voluntarily tendered by the. defendant, we must regard the exception to the refusal of the continuance as waived.
¶8The withdrawal of the answer first filed, which the filing of an additional paragraph did not make necessary, was an abandonment of the defence which it was alleged the testimony of the absent witness would sustain.
¶9Error is also assigned upon the overruling of the defendant’s motion for a new trial, which embraces all the remaining errors, they being hut a repetition of some of the causes for a new trial. Wilson v. Root, 43 Ind. 486; Buskirk Practice, 114, 212.
¶10On the trial the plaintiffs offered in evidence the note, with an assignment thereon, seeming to have been originally as follows :
¶11“ July 19th, 1875. I assign the within note to Redway .& Burton & others. Hugh McNabb.”
¶12The defendant objected to the admission of the assignment in evidence.
¶13The plaintiff thereupon claiming that the words “ & others ” in the assignment had been erased in pencil, and •consequently then formed no part of the assignment, and, acting at the suggestion of the court and over the objection of the defendant, further erased said words, as the *576bill of exceptions informs us, by striking them out with ink.
¶14The note and the assignment were then admitted in evidence, over the further objections of the defendant.
¶15The court having permitted the words “ & others ” to be further struck out on the trial, would seem to imply there had already been some erasure of those words, and, nothing appearing to the contrary, we cannot say that the court was guilty of any abuse of its discretion, or committed any error, in permitting those words to be further struck out.
¶16The defendant offered to prove on the trial the names of certain firms, not mentioned in the pleadings, as being the persons referred to by the words “ & others ” in the assignment, but the proposed testimony was excluded.
¶17There was no averment in the answer to which such testimony would have been applicable, and-for that reason, if for no other, it was properly excluded. Besides, the words “ & others” had already been .struck out, as above stated.
¶18In the only instruction which the court gave to the jury it was assumed by the court, that the defendant had executed the note in suit, and that it had been assigned to the plaintiffs.
¶19It is objected here, that the court erred in so assuming in its presentation of the case to the jury.
¶20Under the issue upon which the cause was tried, and upon the evidence submitted to the jury, the note and the assignment being the only evidence, we are of the opinion that the court did not err in givingthe instruction complained of, as is insisted by the appellant.
¶21There was no answer denying the execution of the note, and the answer denying the assignment was not supported by the oath of the defendant. 1 R. S. 1876, pp. 70 and 71 and notes. Under these circumstances both the *577execution and the assignment of the note were, in legal effect, admitted.
¶22We see no cause for a reversal of the judgment.
¶23The judgment is affirmed, at the costs of the appellant.