L. Oppenheimer & Son v. Cryer

Judge Mayo holds: That where an exception of no cause of action is filed, and overruled by the District Judge, and the parties go to trial, and evidence is admitted without objection, which cures the want of allegations in the petition, that on appeal the Appellate Court must sustain the exception, if it was well taken at the time it was filed and tried. 2. Judge Gunby holds : that the subsequent admission of evidence, inadmissible under the pleadings, was equivalent to an amended petition, which was thereby expanded and developed, .so as to cure the defect existing at the time the exception was tried. Both Judges hold in this case, that where a draft is drawn and accepted, the drawee, upon refusal of the acceptor to pay, ■cannot sue upon the draft without allegation and proof that he has paid it to the payee, or that the original consideration of the ■draft belongs to him. Mere possession of a draft, is not pre *29 sumptive evidence of ownership. 1 N. S. 301; Phillips on Evidence, vol. II, 15.